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Full text of "North Carolina Register v.7 no. 7 (7/1/1992)"

^& L f <^f 7C) 3c »/. fir* ' I c ■ i / 



The 
NORTH CAROLINA 

REGISTER 



PSORTH 



ft. 



ECEn 



IN THIS ISSUE 

EXECUTIVE ORDER 

IN ADDITION 

Final Decision Letter 

PROPOSED RULES 

Economic and Community Development 

Electrolysis Examiners 

Environment, Health, and Natural Resources 

Human Resources 

Insurance 

Justice 

Nursing, Board of 

Speech and Language Pathologists and Audiologists 

State Personnel 

FINAL RULES 
Revenue 

RRC OBJECTIONS 

RULES INVALIDATED BY JUDICIAL DECISION 

CONTESTED CASE DECISIONS 

ISSUE DATE: July 1, 1992 

Volume 7 • Issue 7 • Pages 626-790 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINTSTRATTVF ^n^ 



NORTH CAROLINA REGISTER 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (S105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may 
temporary rules. Within 24 hours of submission to OAH 
Codifier of Rules must review the agency's written statemei 
findings of need for the temporary rule pursuant to the provisioi 
G.S. 150B-21.1. If the Codifier determines that the findings 
the criteria in G.S. 150B-21 .1, the rule is entered into the NCA 
the Codifier determines that the findings do not meet the crit 
the rule is returned to the agency. The agency may supplemei 
findings and resubmit the temporary rule for an additional re' 
or the agency may respond that it will remain with its in 
position. The Codifier, thereafter, will enter the rule into 
NCAC. A temporary rule becomes effective either whe 
Codifier of Rules enters the rule in the Code or on the 
business day after the agency resubmits the rule without cha 
The temporary rule is in effect for the period specified in the ru 
180 days, whichever is less. An agency adopting a temporarv 
must begin rule-making procedures on the permanent rule a 
same time the temporary rule is filed with the Codifier. 



NORTH CAROLINA ADMINISTRATIVE CO! 



The North Carolina Administrative Code (NCAC) 
compilation and index of the administrative rules of 25 
agencies and 38 occupational licensing boards. The N( 
comprises approximately 15,000 letter size, single spaced pag< 
material of which approximately 35% of is changed annu 
Compilation and publication of the NCAC is mandated by 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state ag 
is assigned a separate title which is further broken dow 
chapters. Title 21 is designated for occupational licensing boarc 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum co 
two dollars and 50 cents (S2.50) for 10 pages or 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totalir 
excess of 15,000 pages. It is supplemented mor 
with replacement pages. A one year subscription t( 
full publication including supplements can 
purchased for seven hundred and fifty dol 
(S750.00). Individual volumes may also be purch 
with supplement service. Renewal subscription: 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC shou. 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, 
number and date. 1:1 NCR 101-201, April 1, 1986 refe 

Volume 1, Issue 1, pages 101 through 201 of the North Car. 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office 
Administrative Hearings, ATTN: Rules Division, P.C 
Drawer 27447, Raleigh, North Carolina 27611-7447, (91 
733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, NC 27611-7447 

(919) 733 - 2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE CONTENTS 



I. EXECUTIVE ORDER 

Executive Order 168 



.626 



II. IN ADDITION 

Final Decision Letter. 



.628 



III. PROPOSED RULES 

Economic and Community 
Development 

Banking Commission 629 

Environment, Health, and 
Natural Resources 

Coastal Management 655 

Environmental Management. ...644 

Health Services 659 

Human Resources 

Facility Services 634 

Insurance 

Engineering and Building 

Codes 643 

Justice 

Alarm Systems Licensing 

Board 643 

Licensing Boards 

Electrolysis Examiners 700 

Nursing, Board of, 700 

Speech and Language 
Pathologists & Audiologists ...705 
State Personnel 

Office of State Personnel 705 

IV. FLNAL RULES 
Revenue 

License and Excise Tax 712 

V. RRC OBJECTIONS 748 

VI. RULES LNVALIDATFD BY 

JUDICIAL DECISION 752 

ML CONTESTED CASE 
DECISIONS 

Index to ALJ Decisions 753 

Text of Selected Decisions 768 

MIL CUMULATIVE INDEX 789 



NORTH CAROLINA REGISTER 

Publication Schedule 

(May 1992 - December 1993) 



Issue 


Last Day 


l^ist Day 


Earliest 


Earliest 


Last Day 


♦ 


Date 


for 


for 


Date for 


Date for 


to 


Earliest 




Filing 


Electronic 


Public 


Adoption 


Submit 


Effective 






Filing 


Hearing 


by 
Agency 


to 
RRC 


Date 


**+********+********+********+*♦**+**+**♦****++*****+*+**++*******+ 


05/01/92 


04 10 92 


04/17/92 


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08/03/92 


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08/03/92 


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07/01/92 


07/20/92 


09/01/92 


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05 '22 92 


06/01/92 


06/30/92 


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09/01/92 


07,01 92 


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08/20/92 


10/01/92 


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06/24/92 


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07/30/92 


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08/20/92 


10/01/92 


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07/13,92 


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1 1/02/92 


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09/13/92 


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11/02/92 


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10/01/92 


10/20/92 


12/01/92 


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08/25/92 


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10/20/92 


12/01/92 


10 01.92 


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09 24 92 


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06/01/93 


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05 14 93 


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06.01 93 


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0610 93 


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110593 


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03/01/94 



* The "Earliest Effective Date" is computed assuming that the agency follows 
the publication schedule above, that the Rules Review Commission approves the 
rule at the next calendar month meeting after submission, and that RRC delivers 
the rule to the Codifier of Rules five (5) business days before the 1st business 
day of the next calendar month. 



EXECUTIVE ORDER 



EXECUTIVE ORDER NUMBER 168 

NORTH CAROLINA INTERAGENCY COUNCIL 

FOR COORDINATING HOMELESS 

PROGRAMS 

WHEREAS, the problem of homelessness de- 
nies a segment of our population their basic hu- 
man need for adequate shelter; and 

WHEREAS, several State agencies offer pro- 
grams and services for homeless persons. To 
combat the problem of homelessness most effec- 
tively, it is critical that these agencies coordinate 
program development and delivery of essential 
services. 

Therefore, by the authority vested in me as 
Governor by the Constitution and laws of North 
Carolina, IT IS ORDERED: 

Section 1. ESTABLISHMENT 

The North Carolina Interagency Council for 
Coordinating Homeless Programs (the "Intera- 
gency Council") is hereby established. 

Section 2. MEMBERSHIP 

The Interagency Council shall consist of the 
Deputy Secretary of the North Carolina Depart- 
ment of Human Resources and not less than 14 
members who shall be appointed by the Secre- 
tary of the Department of Human Resources 
from the following organizations: 



Department of Administration 
Housing Finance Agency 
Office of State Planning 
Department of Community 

Colleges 
Department of Cultural Resources 
Department of Economic and 

Community Development 
Department of Environment, 

Health, and Natural Resources 
Department of Human Resources 
State Board of Education or its 

designee from the Department 

of Public Instruction 
Department of Insurance 
Non- Profit Agency Concerned 

with Housing Issues and 

the Homeless 
Non- Profit Agency Concerned with 

the Provision of Supportive 

Services to the Homeless 
Member of N.C. Senate 
Member of N.C. House 



TOTAL 



Section 3. TERMS OF MEMBERSHIP 



14 



The Deputy Secretary of the Department of 
Human Resources shall serve on the Interagency 
Council during his or her term of employment in 
that position. Terms of membership for the 
other members of the Interagency Council shall 
be staggered so that the terms of approximately 
one-half of the members shall expire in a single 
calendar year. Terms shall be staggered in the 
following manner for the first two years: 
7 serving one year 
7 serving two years 

After the first two years, each appointment shall 
be for a term of two years. 

Section 4. CHAIR 

The Chair of the Interagency Council shall be 
the Deputy Secretary of the Department of Hu- 
man Resources. 

Section 5. MEETINGS 

The Interagency Council shall meet quarterly 
and at other times at the call of the Chair or 
upon written request of at least (5) five of its 
members. All business meetings of the Intera- 
gency Council, its committees and subcommit- 
tees or special task forces shall be open to the 
public. 

Section 6. FUNCTIONS 

The Interagency Council shall have the follow- 
ing duties: 



1 1. To identify state level programs and services 

which address the needs of the homeless. 

1 2. To negotiate a definition of specific state 

agency responsibilities with regard to ser- 

1 vices for the homeless. 

1 3. To develop policies and procedures and 

interagency memoranda of agreement to: 
a. Facilitate sharing of information and 

1 resources among involved agencies. 

1 b. Facilitate interagency referrals. 

c. Reduce and eliminate barriers to service. 

d. Target and maximize the effective utiliza- 
1 tion of existing resources. 

e. Facilitate cost sharing among agencies. 
4. To coordinate the provision of information 

1 regarding the extent and scope of problems 

1 of the homeless in North Carolina for the 

1 purposes of planning and implementing 

programs and services. 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



626 



EXECUTIVE ORDER 



5. To assist agencies in identifying and ob- 
taining new sources of funding for the en- 
hancement of current programs and services, 
and for new programs. 

6. To review the current funding of programs 
and services to assure: 

a. the cost effectiveness of programs and 
funding utilization; and 

b. the maximum utilization of federal fund- 
ing. 

7. To prepare an annual report which identifies: 

a. the needs of the homeless; 

b. the current status of programs and ser- 
vices for the homeless; 

c. the adequacy of current funding for pro- 
grams and services for the homeless; 

d. the priorities of state level programs and 
services; and 

e. recommendations for fiscal, program- 
matic, and legislative actions to address 
recognized priorities. 

Section 7. TRAVEL AND SUBSISTENCE 
EXPENSES 



Members of the Interagency Council shall re- 
ceive necessary travel and subsistence expenses in 
accordance with the provisions of G.S. 120-3 1 
or 138-5. 

Section 8. STAFF ASSISTANCE 

The Division of Economic Opportunity of the 
Department of Human Resources shall provide 
administrative and staff support services required 
by the Interagency Council. 

Section 9. EFFECTIVE DATE AND 
EXPIRATION 

This Executive Order shall become effective 
immediately and will expire in accordance with 
North Carolina law two years from the date it is 
signed. It is subject to reissuance at expiration. 

Done in the Capital City of Raleigh, this the 
29th day of May, 1992. 



627 



7:7 NORTH CAROLINA REGISTER July I, 1992 



IN ADDITION 



[G.S. 1 20- 30.9 H, effective July 16, 1986, requires that all letters and other documents issued by the 
Attorney General of the United States in which a final decision is made concerning a "change af- 
fecting voting" under Section 5 of the Voting Rights Act of 1 965 be published in the North Carolina 
Register. / 



U.S. Department of Justice 
Civil Rights Division 

JRD:MAP:EMP:tlb 

DJ 1 66-0 1 2- 3 Voting Section 

92-1786 P.O. Box 66128 

Washington, D.C. 20035-6128 

June 9, 1992 



Z. Creighton Brinson, Esq. 

Taylor & Brinson 

P. O. Drawer 308 

Tarboro, North Carolina 27886-0308 

Dear Mr. Brinson: 

This refers to the annexation (Ordinance No. 91-15) to the Town of Tarboro in Edgecombe 
County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights 
Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on April 13, 1992. 

The Attorney General does not interpose any objection to the specified change. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar sub- 
sequent litigation to enjoin the enforcement of the change. See the Procedures for the Administration 
of Section 5 (28 C.F.R. 51.41). 

We note that a proper submission of a voting change for Section 5 review should be addressed to 
the Chief, Voting Section, Civil Rights Division, P. O. Box 66128, Washington, D.C. 20035-6128. 
The envelope and first page should be marked: Submission under Section 5 of the Voting Rights Act. 
Transmittal or your correspondence to any other office may delay the processing of your request. 

Sincerely, 

John R. Dunne 

Assistant Attorney General 

Civil Rights Division 

By: 

Steven H. Rosenbaum 
Chief, Voting Section 



7:7 NORTH CAROLINA REGISTER July I, 1992 628 



PROPOSED RULES 



TITLE 4 DEPARTMENT OE ECONOMIC 
AND COMMUNITY DEVELOPMENT 



1\ otice is hereby given in accordance with G.S. 
150B-21.2 that the Xorth Carolina Banking Com- 
mission intends to amend rule(s) cited as 4 
NCAC 3E .0101, .0201, .0302, .0601; repeal 
rule(s) cited as 4 NCAC 3E .0106, .0603; adopt 
rule(s) cited as 4 NCAC 3E .0204. 

1 he proposed effective date of this action is De- 
cember 1 , 1992. 

I he public hearing will be conducted at 9:00 
a.m. on August 11, 1992 at the North Carolina 
Banking Commission, 430 North Salisbury Street, 
Suite 6210, Raleigh, North Carolina. 

IXeason for Proposed Action: 
Adoptions: 

Subchapter 3E (Consumer Finance) 

.0204 Transfer of License and Change 

of Location -- This is a new rule. It 
provides in Paragraph (a) for transfer 
or assignment application in writing 
together with a SI 00 fee for each li- 
cense. Additionally, it provides that 
transfers will not be approved other 
than to existing licensees. Paragraph 
(b) provides for an application for 
change of location and a fee of $25. 

Amendments: 

Subchapter 3E (Consumer Finance ) 

.0/01 Application -- Address and 

statutory cite changes only. 

.0201 Operation of other Business in Same 

Office -- This rule has been rewritten 
into four Paragraphs: (a) prohibiting 
other business without approval, (b) 
requiring other loan business to be 
conducted in a separate corporate en- 
tity, (c) providing for an application 
procedure and a fee of $25, and (d) 
requiring an other business license to 
be posted in public view. It also pro- 
vides for address changes and includes 
another appropriate statutory cite. 

.0302 Annual Report -- This is merely 



.0601 



Repeals: 



address changes and a revision of 
statutory cite. 

Books and Records -- Subpart (3) 
dealing with "Individual Account Re- 
cords" has been revised to require 
disclosure of the cash advance and fi- 
nance charges, require a/location of 
payments between principal and inter- 
est, identification of insurance origi- 
nation fees and the amount of 
insurance premiums on consumer fi- 
nance loans, identification of non- 
filing insurance charges, and 
disclosure of the contract interest rate 
and the annual percentage rate 
(APR) as computed under Regulation 
Z. Also, a new subpart (5) requires 
a statement on the loan contract which 
identifies the loan as one regulated by 
the provisions of Chapter 53, Article 
15 of the North Carolina General 
Statutes. It does allow a transition 
period for compliance. A new subpart 

(6) requires detailed judgments to be 
maintained in the local office for 
judgment accounts and a new subpart 

(7) requires substantially the same 
information to be kept in a local office 
for repossession accounts. Finally, a 
new subpart (8) requires certain re- 
cords to be maintained on insurance 
claims. 

Rule .0601 has also been revised to 
adopt modern accounting terminology 
and recognize the authority of 
licensees to maintain their records by 
means of electronic storage and re- 
trieval systems. 



Subchapter 3E ( Consumer Finance) 

.0106 Motor Vehicle Lenders — 
Repealed. 

.0603 Deferment Charges -- Repealed. 

V^ omment Procedures: Comments must be sub- 
mitted in writing not later than Friday, August 7, 
1992. Written comments should be directed to: 
L. McNeil Chestnut, General Counsel 
North Carolina Banking Commission 

Post Office Box 29512 
Raleigh, North Carolina 27626-0512 

CHAPTER 3 - BANKING COMMISSION 



629 



7:7 NORTH CAROLINA REGISTER July I, 1992 



PROPOSED RULES 



SUBCHAPTER 3E - LICENSEES UNDER 

NORTH CAROLINA CONSUMER FINANCE 

ACT 

SECTION .0100 - LICENSING 

0101 APPLICATION 

(a) No person shall make loans under the pro- 
visions of the North Carolina Consumer Finance 
\ct without first obtaining a license from the 
Commissioner of Banks. Application for a con- 
sumer finance license shall be accomplished by 
he execution of Form NCCF 2 and the payment 
f the statutory fee. That form contains a re- 
quest for a license to operate a business under the 
North Carolina Consumer Finance Act and in- 
:orporates all statutory requirements and criteria. 
The form may be obtained from and should be 
filed with: 

The Commissioner of Banks 

Raloigh, North Carolina 37602. 

Post Office Box 29512 

Room 6210, Dobbs Building 

430 North Salisbury Street 

Raleigh, North Carolina 27626-0512. 



(b) Upon receipt of an application for a con- 
sumer finance license, the Commissioner of 
Banks shall give written notice of the application 
to all licensees operating within the community 
proposed to be served as described in the appli- 
cation. Where a licensee holds two or more li- 
censes the notification is to be mailed to the 
home office of such licensee. The notification 
may be by copy of acknowledgement to the ap- 
plicant. 

(c) Following an investigation of the applica- 
tion the Commissioner of Banks shall decide as 
to: 

(1) approval of the application, 

(2) denial of the application. 

Statutory Authority G.S. 53-92; 53-95; 53-104; 
53-168; 53-185; 150B-21.2. 

.0106 MOTOR VEHICLE LENDERS 

A motor vohiclo lender, a* defined by G.S. 
^3 176.1, mur . t be licensod b¥ the Commissioner 



ef Banks i» the same manner a* proscribed m 
Rulo .0101 »f this Suction. Appropriate forms 
afi4 instructions incorporating aU statutory i=e- 

*J ""vrrrCTTTTT UJ 1U VI 1 1 VI TTT CTCTT L' V \J \. ■ I UI 1 11~TJ rTTTTTT III IU 

should be ftlea with: 



: Phe Commissioner t»f Banks 
Raloigh, North Carolina 27602. 



Statutory Authority G.S. 53-92; 53-176.1; 
53-185; 150B-11(1). 

SECTION .0200 - ACTIONS REQUIRING 
APPROVAL OF COMMISSIONER OF BANKS 

.0201 OPERATION OF OTHER 

BUSINESS IN SAME OFFICE 

(a) No licensee shall operate any other business 
in the same office oxoopt as shall be approved » 
writing by with its consumer finance business 
except upon written approval of the Commis- 
sioner of Banks. A requ e st fop ouch approval 
shall be mad e by the execution ef Form NCCF 
$ a«4 the payment ef the statutory inv e stigation 
lee? That form contains a request te- operate the 
business ef- making loans under the Consumer 
Finance Aet- i» the same offic e some other busi 
ness is solicited »f ongagod »t The 

(b) Any other loan business conducted at the 
same location where a licensee makes loans pur- 
suant to Chapter 53, Article 15 of the North 
Carolina General Statutes, must be operated 
through a separate corporate entity. 

(c) Application for other business authority 
shall be made upon Form NCCF 5 and shall be 
accompanied bv a fee of one hundred dollars 
($100.00). An NCCF 5 form can be obtained 
from and should shall be filed with: 

The Commissioner of Banks 

12,0, Bo* 0*4- 

Raloigh, North Carolina 27602. 

Post Office Box 29512 

Room 6210, Dobbs Building 

430 North Salisbury Street 

Raleigh, North Carolina 27626-0512. 



(d) Upon approval of the application, the 
Commissioner of Banks will issue a Certificate 
of Authority which shall be posted in a public 
area of a licensee's office. 

Statutory Authority G.S. 53-92; 53-122(3); 
53-168; 53-172; 53-185; 150B-21.2. 

.0204 TRANSFER OF LICENSE 

AND CHANGE OF LOCATION 

(a) Transfer or assignment. Before a licensee 
may transfer or assign its license to another en- 
tity, the licensee shall apply to the Commissioner 
of Banks for authority to do sex Application 
shall be bv letter which shall set forth the name. 



address and telephone number of the proposed 
transferee or assignee, the reasons tor the transfer 
or assignment and the date upon which the 
licensee proposes to make the transfer or assign- 
ment. The application letter shall also be ac- 



7:7 NORTH CAROLINA REGISTER July I, 1992 



630 



PROPOSED RULES 



companied by a fee of twenty five dollars 
($25.00) payable to the Commissioner of Banks 
for each license proposed for transfer or assign- 
ment together with written acknowledgement of 
the proposed transaction by the transferee or 
assignee. Transfer or assignments to other than 
existing licensees will not be approved. If the 
application is approved, the licensee shall imme- 
diately surrender to the Commissioner of Banks 
its consumer finance license for reissuance to the 
transferee or assignee. 



(b) Change of Location. Prior to any change 
in the business location of a licensee, the licensee 
shall apply to the Commissioner of Banks for 
authority to do so. Application shall be by letter 
setting forth the address and telephone number 
of the new location and shall be accompanied by 
a fee of twenty five dollars ($25.00) payable to 
the Commissioner of Banks. If the application 
is approved, the licensee shall immediately sub- 
mit to the Commissioner of Banks its license for 
amendment. 



Statutory Authority G.S. 53-122(3); 53-I68(e); 
53-170(a); 150B-21.2. 

SECTION .0300 - REPORTS REQUIRED BY 
COMMISSIONER OF BANKS 

.0302 ANNUAL REPORT 

Each licensee under the North Carolina Con- 
sumer Finance Act shall file an annual report 
with the Commissioner of Banks on or before 
March 31 each year. Such report shall be filed 
on Form NCCF 1. That form contains various 
schedules which reflect the financial condition of 
the licensee as well as the results of its operations. 
The form along with necessary instructions rela- 
tive to its execution may be obtained from and 
should be filed with: 

The Commissioner of Banks 

Raleigh, North Carolina 27602. 

Post Office Box 29512 

Room 6210, Dobbs Building 

430 North Salisbury Street 

Raleigh, North Carolina 27626-0512. 



Statutory A uthoritv 
53-185; 150B-21.1. 



G.S. 53-92; 53-184(b); 



SECTION .0600 - CONSUMER FINANCE 
OFFICES 

.0601 BOOKS AND RECORDS 

Each consumer finance office licensed by the 
Commissioner of Banks shall keep in its place 
of business the following books and accounting 



records, (see exception in Item "2," General 
Ledger) These records shall be maintained in 
each office and be readily available to the Com- 
missioner of Banks or his authorized agent. No 
books or records of the licensee may show any 
account or reflect any transaction other than 
those directly related to the making and collecting 
of loans within the provisions of the Consumer 
Finance Act. 

Where a licensee is also an installment paper 
dealer, completely separate books and records 
shall be maintained, including a separate cash 
account. Allocation of expenses shall be made 
monthly according to appropriate and reasonable 
accounting principles. 

All books and records covered by these rales 
must be retained for a period of not less than 
three years: 

(1) Cash Book. The cash book shall be the 
book of original entry in which all trans- 
actions of receipts and disbursements of any 
nature or amount whatsoever shall be item- 
ized. Each transaction made in connection 
with a loan shall be identified with the loan 
by the name and account number of the 
borrower and shall clearly define the nature 
of each charge, collection, or refund made in 
connection with such loan. All entries shall 
be made as of the exact date the transactions 
occur. 

(2) General Ledger. The general ledger shall 
be double entry, showing in full detail the 
total of assets, liabilities, capital, income, 
and expenses. Each account shall be clearly 
and appropriately designated. No net or 
"wash" entries shall be made to any ac- 
count. The general ledger shall be posted 
at least once each month and such posting 
shall include all transactions through the last 
business day of the month. The actual 
posting must be completed by the 20th day 
of each ensuing month for the previous 
month's business. In instances where an 
organization operates two or more offices, 
the general ledger may be maintained in a 
central accounting office of the organization, 
provided a certified trial balance shall be 
made as of the last business day of each 
month and shall be on file in each office 
within 20 days from that time. Each debit 
or credit entry appearing on the general led- 
ger each month shall appear on the trial 
balance. A detailed description of each 
general ledger entry originating outside of a 
local office and not reflected on the cash 
book of that office shall be on fde in each 
office to support such entries appearing on 
the general ledger. This shall include ad- 



631 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



justing and closing entries. If any account 
on the general ledger does not agree with the 
corresponding account on the annual report 
to the Commissioner of Banks, a supple- 
ment to the annual report shall be furnished 
which reconciles or explains any differences. 
(3) Individual Account Card. A separate ac- 
count card shall be maintained for each loan 
made. Each account card shall provide the 
following information which may be shown 
on the front or back of the account card: 

(a) name and address of borrower, spouse's 
name, and name of any other person ob- 
ligated directly or indirectly on the loan; 

(b) cross reference to other loans of the bor- 
rower, or spouse, or endorser, guarantor, 
or surety, or to any joint obligation of the 
borrower; 

(c) account number; 

(d) date of loan and maturity; 

(e) length of contract; 

(f) the cash advance, finance charge, number 

of payments and amount of each; 

(g) date and amount of each payment, a*4 
each dofault charg e oollooted; an allo- 
cation between principal and interest for 
each payment, and the remaining loan 
balance after each payment; 

(h) date of previous loan; 
(i) brief description of security; 
(j) amount ef- charge; 

(j) £k} type of insurance, aft4 amount ef- p*e- 

miums; insurance origination fees and 

amount of insurance premium for each 

coverage written; 

(k) (ty amount of recording fee or non-tiling 

charges; 
(1) (ft*) amount of any other charge whatsoever 

made in connection with the loan; 
(m) (ft) amount of refund; unearned insurance 
premium refunded for each coverage 
written; 
(n) (^) if refunds are paid by cash or check, 
acknowledgment of receipt of refund by 
signature of borrower; and 
(o) contract interest rate and annual percent- 
age rate as computed under Regulation 
Z. 
(4) Index of Borrowers. Each office shall keep 
an index record on which all loans to each 
individual shall be entered in order, showing 
date made, account number, amount of 
loan, and date of cancellation. This record 
shall be maintained on individual index 
cards or on the face of the borrower's indi- 
vidual file, "shuck," "jacket," or folder and 
shall be filed alphabetically or by account 



number, provided where the account num- 
ber is used an alphabetical cross index be 
available to the examiner. 

(5) Loan Documents. Loans made by a 
licensee shall on the loan contract contain 
the following statement printed in a con- 
spicuous manner: Lhis loan is regulated 
by the provisions of Chapter 53, Article 15 
of the North Carolina General Statutes." 

(6) Judgments. When a loan has been reduced 
to judgment, all of the following provisions 
shall be complied with: 

(a) the individual account card maintained 
pursuant to Subpart (3) of this Rule shall 
clearly be designated a judgment account; 

(b) payments received shall be identified and 
applied on the judgment account card; 

(c) the licensee shall maintain in the office 
from which the judgment account origi- 
nated a copy of the judgment and any 
other court documents which are neces- 
sary' to disclose the following information: 

(i) judgment date; 

(ii) name of licensee; 

(iii) judgment debtor's name; 

(iv) date suit was filed; 

(v) nature of the suit; 

(vi) name and location of the court; 

(vii) amount of the judgment, specifying 

principal, interest charges, and court costs; 

and 
(viii) disposition of the case; 

(d) a licensee which charges a borrower for 
court costs it incurred on a judgment ac- 
count shall itemize such costs on the in- 
dividual account card and retain a receipt 
or other document substantiating the 
costs; 

(e) a licensee shall retain a copy of the sheriff's 
return of execution issued when property 
is sold pursuant to a judgment. 

(7) Repossessions. When property is taken in 
accordance with the terms of a security 
agreement or by judicial process or aban- 
donment, the individual account card shall 
be clearly designated as a repossession ac- 
count and shall state when and how pos- 



session of the security was obtained and 
shall identify the proceeds of the sale ot the 
property. The licensee shall also retain in 
the office in which the repossession account 
originated, all of the following: 

(a) a copy of any agreement entered into with 
the borrower with respect to the terms of 
surrender; 

(b) a copy of the notice of sale, together with 
evidence of mailing or personal delivery; 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



632 



PROPOSED RULES 



(c) an inventory of the property taken, unless 
it otherwise appears w detail on the notice 
of sale; 

a signed statement from the purchasers, 
or from the auctioneer if the sale was 
public, describing the collateral purchased 
and showing the amounts paid; 
evidence that the sale took place on the 
date set forth in the notice of sale, includ- 
ing a notice of anv bids received; 



Id] 



(e) 



(f) copy of a detailed final accounting sent to 
the borrower setting forth the disposition 
of the proceeds of sale and the principal 
balance due, if any, on the account; and 



paid receipts evidencing costs incurred in 

the repossession and sale of the security 

which have been charged to the borrower. 

(8) Insurance Records. A licensee shall main- 



tain in each office where a loan account 
originated, a record of any claims paid under 
insurance written in connection with a con- 
sumer finance loan. The records shall in- 
clude: 



(a) the loan number and name of debtor; 

(b) description of the insurance claim, i.e., 
whether death claim, property damage, or 
claim for benefits under accident and 
health insurance; and 

(c) in the case of claims under credit life in- 
surance, a cot 



of the certified death cer- 



tificate. 



Statutory Authority G.S. 53-92; 53-104; 53-184; 
53-185; 150B-21.2. 

.0603 DEFERMENT CHARGES 

If the contract se provided, aed the payment 
dates ©I ail wholly unpaid installments ase de- 
ferred fef ©«e ©f- mora foil months. a»d the ma- 
turity date ef the contract is extended fop a 
corresponding period, the licensee may charge 
a«4 collect a dofoimont charge. 

"4-he deferment charge shall m»t exceed the dif- 
fer e nce between the refund that would be Fe- 
quired und e r the "rule ef 78'o" ef sem el the 
digits principle fof prepayment m foe a* ©I the 
scheduled dee date ©I the fost deforrod install 
ment aftd the r e fund which would be required fof 
prepayment m foil a* el ©fte month prior te such 
date, multiplied by- the Mim el the number ©I 
months m which »© scheduled payment ha* been 
made aftd m which »e payment is t© he required 
by- r e ason el the d e f e rment. ?4*e charge fof sub 
s e quent defennento » the sam e contract shall be 
computed m the same manner, provid e d the 
charge is based ©«■ the fost installment el such 
subsequent d e f e rment. 



A deferment charge may be collected at the time 
el defermen t ef at aey time thoroaftor. 

Ne installment which has boon partially paid 
©f e» which a default charge , has boon madeshaH 
be deferred ©f included m the computation el a 
dofonnent ohargo unlooo the partial paymen t m 
d e fault charge is rofundod te the borrowor e* 
credited te the dofoimont chargo. 

If eee ©f more installment o afe m default aed a 
deferment chargo is deducted from a tondorod 
payment and- as a rooult the account is mado 
curront, a»y differ e nce between the amount paid 
aftd the amount el the deferment ohargo, il moro 
than foe dollars ($5.00), shall be rofundod te the 
borrower; provided, aey uncoil ectod default ef 
d e ferment charges previously dee may be de- 
ducted. 

II a deferm e nt is imposed without the borrow 
efts consent, then the number el months m the 
dofoimont p e riod shall set oxoocd the numbor el 
installments m default. 

If the amount el payment t e nder e d is sufficient 

♦ ■ a «-~t ■ ■ i - *b,i fi.'.Tfii int I i f-t t .~\ - ' " * 1 1 ini'liiflinn n .-»,--.-i in^ 

rrr l. 1 u t uil u i_^_'v^ uiii i_i lj r^r uun , 11 iv^i uvjuttt ck^^^hcts 

d e fault charg e s, »e deferment chargo may- be as- 
sessed except upon written request el the bef- 
rower. 

ttte borrower shall be advised by- the liconooo, 
m writing, el e ach deferment including the 
amount el the defermen t charge, the dee date^ 
ae4 amount el the next scheduled installment, 
aftd the amount el the unpaid balanoo. 

II a loan contract is pr e paid during a d e f e rmen t 
period, the refund el charges must include the 
portion ©I the deferment chargo applicable te aay 
month ©I the deferment period m which less tba» 
44 days have expired. ¥e arrive at the proper 
amount ©I refund ftfst detormino the amount the 
r e fund would hav e boon il the deferment had Bet 

V-\ . >. >r\ jn- ■ | rt t . -h . i ' \ n . i t^^^^ I ,--\ '-i r\ i \ I —i .- r^ * i ■ , \ \ ri t ■ » J t Qn ^^^ 
l_ ' ^ V~ 1 1 EI CO 1 EvO CO EO CXXD IL'UII *T UJ L'UJU 111 1 CR3 *-MI HIV 

dae date el the last installment which was paid. 
^fe- this amount must be added the deformont 
ohargo applicable te each month m the deformont 
period » which less than 14 days have expired. 

I ill? QTS 1 1 1 ( *f t I lt™^T t^TTT T*t* 1 1 [ V I \ 1 1 T. J t CfTTTTTTTTTT ITT 1 O 

1 1 i n n ■ i i < ~» 
I LI 1 1U U BD - 

If there is a prepayment ©I a loan » fell subso 
quont t© the deferment p e riod, the total charg e 
refund may- be basod ©» the contract's original 
add on chargo, provided the number ©I prepaid 
leae months shall be based e» the deferr e d ma- 
turity date. When the refund t% basod ©ft the 
number ©I me elapsed months rathor thaft the 
number ©I prepaid months, the numb e r ef 
elapsed month ■• mest be reduced by eee month 
l©f eaeh month ©ft which a deferment charg e has 
been made. 



633 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



Statutory Authority G.S. 53-92; 53- 1 04; 
3-173(6); 53-185. 

TITLE 10 DEPARTMENT OF HUMAN RESOURCES 

*N otice is hereby given in accordance with G.S. 150B-2I.2 that the Division of Facility Services (DHR) 
ntends to adopt rules cited as 10 NCAC 3R .3001, .3010, .3020, .3030 and .3040. 

I he proposed effective date of this action is November I, 1992. 

L he public hearing will be conducted at 2:00 p.m. on September 9, 1992 at the Council Building. Room 
'01, 701 Barbour Drive, Raleigh, NC. 

IXeason for Proposed Action: To establish the State Medical Facilities Plan as a ride. 

^ omment Procedures: Written comments should be submitted as soon as possible but no later than 
eptember 2, 1992, to Jackie Sheppard, APA Coordinator, Division of Facility Services, P.O. Box 29530, 
Weigh, NC 27626-0530, Telephone (919) 733-2342. 

Cidito/s Note: These Rules have been filed as temporary rules effective May 31, 1992 for a period of 
80 days to expire on October 31, 1992. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTIFICATE OF NEED REGULATIONS 

SECTION .3000 - STATE MEDICAL FACILITIES PLAN 

.3001 CERTIFICATE OF NEED REVIEW CATEGORIES 

The agency has established nine categories of facilities and services for certificate of need review and 
vill determine the appropriate review category or categories for all applications submitted. For pro- 
'osals which include more than one category, the agency will require the applicant to suhmit separate 



pplications. If it is not practical to submit separate applications, the agency will determine in which 



ategory the application will be reviewed. The review of an application for a certificate of need will 



ommence in the next review schedule after the application has been determined to be complete. The 



line categories of facilities and services are: 



(1) Category- A. Includes proposals for acute health service facilities including but not limited to the 
following types of projects: renovation, construction, major medical equipment and other ancil- 
lary and support equipment and services, except those proposals included in Categories B through 
L 

(2) Category B. Includes proposals for long-term nursing facility beds which are reviewed against the 
State Medical Facilities Plan. 

(3) Category C. Includes proposals for new psychiatric facilities; psychiatric beds in existing health 
care facilities; new intermediate care facilities for the mentally retarded (ICF/MR) and ICF MR 
beds in existing health care facilities except for special allocation of ICF MR beds for only Thomas 
S^ class members; new substance abuse and chemical dependency facilities; substance abuse and 
chemical dependency beds in existing health care facilities. 

(4) Category' D. Includes proposals for new or expanded end-stage renal disease treatment facilities; 
and relocations of existing dialysis stations. 

(5) Category E. Includes proposals for new or expanded inpatient rehabilitation facilities and inpa- 
tient rehabilitation beds in other health care facilities. 

(6) Category J\ Includes proposals for new or expanded ambulatory surgical facilities. 

(7) Category G. Includes proposals involving cost overruns; addition of one dialysis station for iso- 
lation of patients; expansions of existing continuing care or life care facilities which are applying 
under exemptions from need projections in the Plan; relocations of existing health service facilities 
which do not involve an increase in the number of health service facility beds; with the exception 



7:7 NORTH CAROLINA REGISTER July 1, 1992 634 



PROPOSED RULES 



of relocating dialysis stations; reallocation of beds due to withdrawals or relinquishments of cer- 
tificates of need; hospital proposals to convert acute care beds to short-term nursing; proposals 
subrrutted by Academic Medical Center Teaching Hospitals designated prior to January L 199Q; 
and any other proposal not included in Categories A through Fj Category H, or Category 1. ~ 

(8) Category H. Includes proposals for demonstration projects identified in this Plan; special allo- 
cation of 1CF MR beds for Thomas S. class members only. " " 

(9) Category 1 Includes proposals for new continuing care or life care facilities and new home health 



agencies or offices. 



Statutory Authority G.S. I3IE-176(25); I31E-177(l); 131E-183(1). 

.3010 HEALTH SERVICE AREAS 

The agency has assigned the counties of the state to the following health service areas for the purpose 
of scheduling applications for certificates of need: 







HEALTH SERVICE AREAS (HSA) 






I 


II 


III 


IV 


V 


VI 


County 


County 


County 


County 


County 


County 




Alexander 


Alamance 


Cabarrus 


Chatham 


Anson 


Beaufort 


Alleghany 


Caswell 


Gaston 


Durham 


Bladen 


Bertie 


Ashe 


Davidson 


Iredell 


Franklin 


Brunswick 


Camden 


Avery- 


Davie 


Lincoln 


Granville 


Columbus 


Carteret 


Buncombe 


Forsyth 


Mecklenburg 


Johnston 


Cumberland 


Chowan 


Burke 


Guilford 


Rowan 


Lee 


Harnett 


Craven 


Caldwell 


Randolph 


Stanly 


Orange 


Hoke 


Currituck 


Catawba 


Rockingham Union 


Person 


Montgomery 


Dare 


Cherokee 


Stokes 




Vance 


Moore 


Duplin 


Clay 


Surry 




Wake 


New Hanover 


Edgecombe 


Cleveland 


Yadkin 




Warren 


Pender 


Gates 


Graham 








Richmond 


Greene 


Haywood 








Robeson 


Halifax 


Henderson 








Sampson 


Hertford 


Jackson 








Scotland 


Hyde 


McDowell 










Jones 


Macon 










Lenoir 


Madison 










Martin 


Mitchell 










Nash 


Polk 










Northampton 


Rutherford 










Onslow 


Swain 










Pamlico 


Transylvania 










Pasquotank 


Watauga 










Perquimans 


Wilkes 










Pitt 


Yancey 










Tyrrell 
Washington 
Wayne 
Wilson 



Statutory Authority G.S. 131E-I76(25); 13IE-177(l); I31E-183(I). 

.3020 CERTIFICATE OF NEED REVIEW SCHEDLLE 

1 he .igene\ has established the following schedule for review of categories and subcategories of facjh- 
ties and services in 1992: 



( 1) Category B. Subcategory Long-Term Nursing Facilities. 



635 



7:7 NORTH CAROLINA REGISTER July I, 1992 





PROPOSED RULES 














CON Beginning 


County 




HSA 




Review Date 


Alleghany 




I 




February 1, 1992 


Cleveland 




I 




February 1, 1992 


Polk 




I 




February 1, 1992 


Burke 




1 




August 1, 1992 


Jackson 




I 




August 1, 1992 


Alamance 




11 




February 1, 1992 


Caswell 




II 




February 1, 1992 


Rockingham 




II 




February 1, 1992 


Davie 




II 




August 1, 1992 


Yadkin 




II 




August 1, 1992 


Mecklenburg 




III 




March 1, 1992 


Stanly 




III 




September 1, 1992 


Chatham 




IV 




March 1, 1992 


Person 




IV 




March 1, 1992 


Wake 




IV 




September 1, 1992 


Warren 




IV 




September 1, 1992 


Cumberland 




V 




April 1, 1992 


Moore 




V 




April 1, 1992 


Robeson 




V 




April 1, 1992 


Scotland 




V 




April 1, 1992 


Bladen 




V 




October 1, 1992 


New Hanover 




V 




October 1, 1992 


Beaufort 




VI 




April 1, 1992 


Nash 




VI 




Apnl 1, 1992 


Northampton 




VI 




April 1, 1992 


Craven 




VI 




October 1, 1992 


Hertford 




VI 




October 1, 1992 


Pamlico 




VI 




October 1, 1992 


Wilson 




VI 




October 1, 1992 


(2) Category C. Subcategory Intermediate Care Facilities for Mentally Retarded. 










CON Beginning 


Counties 






HSA 


Review Date 


Jackson, Haywood, Macon 


Cherokee, 


Clay 


I 


December 1, 1992 


Graham, Swain 










Transylvania, Henderson 






I 


December 1, 1992 


Caldwell, Burke, Alexander 


McDowell 




I 


December 1, 1992 


Rutherford, Polk 






I 


June 1, 1992 


Cleveland 






I 


June 1, 1992 


Mecklenburg 






111 


May 1, 1992 


Surry, Yadkin 






II 


June 1, 1992 


Forsyth, Stokes 






II 


June 1, 1992 


Alamance, Caswell 






II 


November 1, 1992 


Orange, Person, Chatham 






IV 


May 1, 1992 


Vance, Granville, Franklin, 


Warren 




IV 


November 1, 1992 


Davidson 






II 


November 1, 1992 


Cumberland 






V 


December 1, 1992 


Johnston 






IV 


May 1, 1992 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



636 



PROPOSED RULES 



Counties 


HSA 


CON Beginning 
Review Date 


Wake 


IV 


November 1, 1992 


Randolph 

New Hanover, Brunswick, Pender 


II 
V 


November 1, 1992 
December 1, 1992 


Onslow 


VI 


June 1, 1992 


Wilson, Greene 


VI 


June 1, 1992 


Edgecombe, Nash 


VI 


June 1, 1992 


Hertford, Bertie, Gates, Northampton 


VI 


December 1, 1992 


Pasquotank, Chowan, Perquimans, Camden, 
Dare, Currituck 


VI 


December 1, 1992 



(3) Category D. Subcategory Fnd Stage Renal Disease Treatment Facilities. 







CON Beginning 


Counties 


HSA 


Review Date 


Cherokee, Clay, Graham, Jackson, Macon, Swain 


I 


April 1, 1992 


Buncombe, Haywood, Madison, Mitchell, Yancey 


I 


October 1, 1992 


Henderson, Polk, Transylvania 


1 


October 1, 1992 


Ashe, Avery, Caldwell, Watauga, Wilkes 


I 


April 1, 1992 


Burke, McDowell 


I 


October 1, 1992 


Rutherford 


I 


April 1, 1992 


Alexander, Catawba 


I 


October 1, 1992 


Alleghany, Stokes, Surry 


II 


October 1, 1992 


Davidson 


11 


October 1, 1992 


Caswell, Rockingham 


11 


October 1, 1992 


Randolph 


II 


Apnl 1, 1992 


Alamance 


II 


April 1, 1992 


Gaston 


111 


May 1, 1992 


Lincoln 


III 


May 1, 1992 


Rowan 


III 


October 1, 1992 


Cabarrus 


III 


October 1, 1992 


Montgomery, Stanly 


111 


October 1, 1992 


Chatham, Lee 


IV 


October 1, 1992 


Person 


IV 


May 1, 1992 


Wake 


IV 


October 1, 1992 


Johnston 


IV 


October 1, 1992 


Franklin, Vance, Warren 


IV 


May 1, 1992 


Anson 


V 


August 1, 1992 


Cumberland, Hoke 


V 


Apnl 1, 1992 


Harnett 


V 


April 1, 1992 


Sampson 


V 


Apnl 1, 1992 


Bladen 


V 


August 1, 1992 


Robeson 


V 


August 1, 1992 


Pender 


V 


August 1, 1992 


Brunswick 


V 


August 1, 1992 


Duplin 


VI 


April 1, 1992 


Wayne 


VI 


April 1, 1992 


Fdgecombe, Nash 


VI 


April 1, 1992 


Gates, Halifax, Hertford, Northampton 


VI 


August 1, 1992 


Bertie, Washington 


VI 


August 1, 1992 


Martin 


VI 


April 1, 1992 



637 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



Counties 



HSA 



CON Beginning 
Review Date 



Greene, Pitt 

Beaufort 

Carteret, Craven, Jones, Pamlico 

Onslow 



VI 
VI 
VI 
VI 



August 1, 1992 

August 1, 1992 

August 1, 1992 

August 1, 1992 



(4) Category I. Subcategory Home Health Agencies. 



County 



HSA 



CON Beginning 
Review Date 



Mecklenburg 

Randolph 

Wilkes 



III 
II 
I 



February 1, 1992 
April 1, 1992 
April 1, 1992 



'5) All categories for which review dates are not specified in Subparagraph (1), (2), (3), (4) of this 

Rule. ~~'~" ~~ " ~" " ~" ~ " 



REVIEW 
PERIOD 



HSA I 



HSA II 



HSA III 



HSA IV 



HSA V 



HSA VI 



January 1 
February 1 
March 1 
April 1 
May 1 
June 1 
July 1 
August 1 
September 1 
October 1 
November 1 
December 1 



B,G 

A,D,G,F 

A,C,G,E 

B,G 

D,G,F 

A,C,G,E 



B,G 

A,D,G,F 

A,C,G,E 

B,G 

D,G,F 
A,C,G,E 



A,D,G,F 
B,G, 

C,G,E 

A,D,G 

B,G,F 

A,C,G,E 



A,D,G,F 
B,G 

C,G,E 

A,D,G 

B,G,F 

A,C,G,E 



A,D,G,F 

B,G 

A,C,G,E 

D,G,F 

B,G 

A,C,G,E 

A,C,G,E 



A,D,G,F 

B,G 

A,C,G,E 

D,G,F 

B,G 

A,C,G,E 



Statutory Authority G.S. 131E-176(25); 131E-I77(I); I31E-I83(1). 



3030 FACILITY AND SERVICE ALLOCATIONS 

Facility and services allocations are: 

(1) Category A. Acute Health Service Facilities. 
Morehead Memorial Hospital Service System 
Halifax Memorial Hospital Service System 
UNC Hospital Service System 



HSA II 



16 beds 



HSA VI 17 beds 

HSA IV 15 beds (University students) 



(2) Category B. Long-Term Nursing Facility Beds. 



County 



HSA 



Number of Nursing 
Beds Allocated 



Alleghany 
Cleveland 
Polk 



20 
60 

40 



7:7 NORTH CAROLINA REGISTER July I, 1992 



638 



PROPOSED RULES 







Number of Nursing 




County 


HSA 


Beds Allocated 




Burke 


I 


60 




Jackson 


I 


20 




Alamance 


II 


60 




Caswell 


II 


20 




Rockingham 


II 


80 




Davie 


II 


90 




Yadkin 


II 


60 




Mecklenburg 


III 


11)0 




Stanly 


III 


60 




Chatham 


IV 


20 




Person 


IV 


20 




Wake 


IV 


70 




Warren 


IV 


20 




Cumberland 


V 


90 




Moore 


V 


60 




Robeson 


V 


4 




Scotland 


V 


20 




Bladen 


V 


40 




New Hanover 


V 


100 




Beaufort 


VI 


40 




Nash 


VI 


60 




Northampton 


VI 


20 




Craven 


VI 


60 




Hertford 


VI 


20 




Pamlico 


VI 


20 




Wilson 


VI 


60 





(3) Category C. 

(a) Psychiatric Facility Beds. 









BEDS 


Counties 


HSA 


Adult 


Child Adolescent 


Transylvania, Henderson 


I 


-. 


12 


Gaston, Lincoln 


III 


11 


-- 


Rowan, Iredell, Davie 


III 


19 


-- 


Stanly, Cabarrus, Union 


III 


26 


10 


Surrv, Yadkin 


II 


23 


— 


Rockineham 


II 


16 


-- 


Vance, Granville, Franklin, 


IV 


13 


-- 


Warren 








Davidson 


II 


10 


-- 


Lee, Harnett 


V 


15 


-- 


Wake 


IV 


34 


-- 


Craven, Jones, Pamlico, 


VI 


14 


-- 


Carteret 








Lenoir 


V] 


10 


-- 


Beaufort, Washington, 


VI 


17 


— 


Tyrrell, Hyde, Martin 









639 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 




(b) Intermediate Care Facilities for Mentally Retarded Beds. 


Counties 




HSA 


Allocation 


Jackson, Haywood, Macon, Cherokee, 




I 


12 


Clay, Graham, Swain 








Transylvania, Henderson 




1 


12 


Caldwell, Burke, Alexander, McDowell 




I 


6 


Rutherford, Polk 




I 


6 


Cleveland 




I 


18 


Mecklenburg 




II 


48 


Surry, Yadkin 




II 


12 


Forsyth, Stokes 




II 


18 


Alamance, Caswell 




II 


18 


Orange, Person, Chatham 




IV 


12 


Vance, Granville, Franklin, Warren 




II 


6 


Davidson 




II 


6 


Cumberland 




V 


18 


Johnston 




IV 


42 


Wake 




II 


12 


Randolph 




V 


6 


New Hanover, Brunswick, Pender 




V 


6 


Onslow 




VI 


18 


Wilson, Greene 




VI 


6 


Edgecombe, Nash 




VI 


6 


Hertford, Bertie, Gates, Northampton 




VI 


6 


Pasquotank, Chowan, Perquimans, 




VI 


6 


Camden, Dare, Currituck 








(c) Substance Abuse and Chemical Dependency 


Facility 


Beds. No allocation. 




(4) Category D. End Stage Renal Disease Treatment Facilities. 










Allocation If 








All Pending 


Counties 




HSA 


Are Approved 


Cherokee, Clay, Graham, Jackson, 




I 


4 


Macon, Swain 








Buncombe, Haywood, Madison, Mitchell, 




I 


13 


Yancey 








Henderson, Polk, Transylvania 




1 


3 


Ashe, Avery, Caldwell, Watauga, Wilkes 




1 


6 


Burke, McDowell 




I 


2 


Rutherford 




I 


7 


Alexander, Catawba 




1 


4 


Alleghany, Stokes, Surry- 




II 





Davidson 




II 


2 


Caswell, Rockingham 




II 


7 


Randolph 




II 


3 


Alamance 




II 


6 


Gaston 




III 


6 


Lincoln 




III 


7 


Rowan 




III 


4 


7:7 NORTH CAROLINA REGISTER July 1, 1992 


640 



PROPOSED RULES 







Allocation If 






All 


Pending 


Counties 


HSA 


Are 


Approved 


Cabarrus 


III 




5 


Montgomery, Stanly 


III 




5 


Chatham, Lee 


IV 




6 


Person 


IV 




8 


Wake 


IV 




12 


Johnston 


IV 




7 


Franklin, Vance, Warren 


IV 




10 


Anson 


V 




3 


Cumberland, Hoke 


V 




17 


Harnett 


V 




3 


Sampson 


V 




4 


Bladen 


V 




7 


Robeson 


V 




13 


Pender 


V 







Brunswick 


V 




10 


Duplin 


VI 




3 


Wayne 


VI 




4 


Edgecombe, Nash 


VI 




14 


Gates, Halifax, Hertford, Northampton 


VI 




19 


Bertie, Washington 


VI 







Martin 


VI 




8 


Greene, Pitt 


VI 




3 


Beaufort 


VI 







Carteret, Craven, Jones, Pamlico 


VI 




13 


Onslow 


VI 




6 



(5) Category F^ Inpatient Rehabilitation Facility Beds. 
HSA Beds 



I 
Tl 

m 

IV 

v 

V] 



20 

4 
20 

22 
35 



(6) Category F. Ambulatory Surgery Facilities. 

Any area's need is determined by applying the following formula: 



1990 Amb. Surg. Cases in 

the Proposed Amb. Surg. Area or 50.9 

Area Population (1 OOP's) 



Projected Ambulatory Surgical 
Cases in Proposed Service Area 

U' 1 "! 'uhcs per room per year) 



X 



1994 Pop. 
of .Area to 
be Served 



(1 OOP's) 
divided bv .80 



Proposed 4mb. Su 
_ Cases in Pro po sec 

Service Area 



■Ambulatory' Surgei 

Rooms Needed ii 

Proposed Service A 



This methodology is not applicable to CON ambulatory surgical applications which conform to 
10 NCAC 3R .21 15(c)(2) relative to access to medically underserved persons. 

(7) Category II. Brain Injury Demonstration - Long-Term Nursing Facility Beds. 



641 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



(a] HSA I and III 20 beds 

(b] HSA II, IV and V, 20 beds 
(less Bladen, Brunswick, Chowan 

New Hanoever, Pender and Sampson 
counties.) 

(c] HSA VI 20 beds 
(plus Bladen, Brunswick, Chowan, 

New Hanover, Fender and Sampson 
counties.) 

(8) Category B - Demonstration Project, Medically Complex Children ; Long-Term Nursing Beds. 
All HSAs 10 beds 

(9) Category G. Thomas S. class - Intermediate Care Facility beds for Mentally Retarded. 
All HSAs 71 beds 

(10) Category I. New Home Health Agencies. 



Number of Agencies 
County HSA Allocated 



Mecklenburg III 1 

Randolph II 2 

Wilkes I 1 



Statutory Authority G.S. 131E-176(25); 131E-177(I); 131E-183(1). 

3040 REALLOCATIONS, ADJUSTMENTS, AND ALLOCATION AVAILABILITY 

'a) Reallocations resulting from withdrawals, relinquishments, or no applications. 

(1) An allocation for which a certificate of need is issued, but is subsequently withdrawn or relin- 
quished, and an allocation for which no certificate of need application is received, is available for 
a review period to be determined by the Certificate of Need Section, but beginning no earlier 
than 60 days from: 

(A) the last date on which the holder of a certificate of need could have appealed a notice of intent 
to withdraw his certificate, if he does not in fact appeal; 

(B) the date on which an appeal is finally resolved against the holder; 

(C) the date that the Certificate of Need Section receives notice from the holder of the certificate 
of need that the certificate has been voluntarily relinquished; or 

(D) For allocations for which no application was received, the last due date on which applications 
could have been received. 

Notice of the reallocation and the review period for which applications shall be submitted to 
whom will be given no less than 45 days prior to the due date for receipt of the new applications. 

(2) Reallocation of service capacity represented bv a relinquished or withdrawn certificate of need 
or bv an allocation for which no application was received will occur only to the extent of the 
need indicated for the same service contained in this Section in effect at the time of such deter- 
mination, as adjusted through the provisions of Paragraph (b) of this Rule. The effective date 
of the determination of the availability of capacity for reallocation is the date designated in Parts 
(a)(1)(A), (B). (C) or (D) of this Rule. 

(3) Reallocations made available through this policy for which no application is received for the 
review period designated in Subparagraph (a)( 1) of this Rule will not be reallocated again. 

(b) Need adjustments for prior year certificate of need awards. Need determinations in this section 
are based on an inventory' of facilities that existed and of certificates of need awarded prior to prepara- 
tion of this Plan and will be adjusted bv the amount of any subsequent certificate of need awards. A 



7:7 NORTH CAROLINA REGISTER July I, 1992 642 



PROPOSED RULES 



record of capacity remaining available for allocation will be maintained by the Medical Facilities Plan- 
ning Section, based upon information supplied bv the Certificate of Need Section. For information 
about the availability of these allocations write Medical Facilities Planning Section, Division of Facility 
Services. P.O. Box 29530, Raleigh, NC 27626-0530, or call 919-733-4130. 

(c) Availability of Plan Allocations. Single-month review specific allocations in this Plan are available 
only for the review cycles specified in j_0 NCAC 3R .3020(1), (2), (3) and (4) and in the next-occurring 
scheduled certificate of need review cycle applicable to the same facility service category for the health 
service area in which the county or counties are located, as specified in K) NCAC 3R .3020(5). Allo- 
cations which are not single-month review specific are available only for the certificate of need review 
cycles specified in 10 NCAC 3R .3020(5). 

Statutory Authority G.S. I31E-176(25); 131E-177(l); 131E-I83(1). 



TITLE 1 1 - DEPARTMENT OF 
INSURANCE 

i V otice is hereby given in accordance with G.S. 
150B-21 .2 that the N.C. Department of Insurance 
intends to amend rule(s) cited as 1 1 NCAC 8 
.0602. 

1 he proposed effective date of this action is Oc- 
tober I, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on July 23, 1992 at the Code Officials Qual- 
ification Board, 410 N. Boylan Avenue, Raleigh, 
N.C. 27611. 

INeason for Proposed Action: To extend the 
probationary certificate for fire inspectors only 
due to courses not being available at the time of 
original certification. 



Cc 



omment Procedures: Written comments may 
be sent to Grover Sawyer, c'o Qualifications 
Board, P.O. Box 26387, Raleigh, N.C. 27611. 
Oral presentations may be made at the public 
hearing. Anyone having questions should call 
Grover Sawyer at (919) 733-3901 or Ellen 
Sprenkelat '(919) 733-4529. 



probationary certificate is issued to Fixe Pre- 
vention Code enforcement officials for two years 
only, or until June 30, 1994. whichever is later, 
and may not be renewed. The official wtH shall 
take whatever measures are necessary during such 
period to qualify for an appropriate standard 
certificate. A probationary certificate authorizes 
the official, during the effective period of the cer- 
tificate, to hold the position of the type, level, 
and location specified. The certificate shall be 
conditioned upon the applicant's applicant 
working under supervision sufficient to protect 
the public health and safety; or the applicant 
must have a minimum of two years of design, 
construction, or inspection experience working 
under a certified inspector, licensed engineer, ar- 
chitect, or contractor, or one of the experience 
qualifications listed in the Board's rules in each 
area of code enforcement for which the 
probationary certificate is issued; or the applicant 
must have successfully completed a probationary 
pre-qualification exam administered by the Board 
in each area of code enforcement for which the 
probationary certificate is issued. 



Statutory Authority G.S. 
143- 15 1.13(d). 



143-151.12(1); 



TITLE 12 - DEPARTMENT OF JUSTICE 



CHAPTER 8 - ENGINEERING AND BUILDING 
CODES 

SECTION .0600 - QUALIFICATION 
BOARD-PROBATIONARY CERTIFICATE 



iV otice is hereby gh'en in accordance with G.S. 
I50B-2I .2 that the North Carolina Alarm Systems 
Licensing Board intends to adopt rule(s) cited as 
12 NCAC 11 .0208. 



.0602 NATURE OF PROBATIONARY 
CERTIFICATE 

A probationary certificate may be issued, with- 
out examination, to any newly-employed or 
newly-promoted code enforcement official who 
lacks a standard certificate which covers his new 
position. A probationary certificate is issued for 
two years only and may not be renewed. A 



1 he proposed effective date of this action is Oc- 
tober 1, 1992. 

1 he public hearing will be conducted at 11:00 
a.m. on July 17, 1992 at the State Bureau of In- 
vestigation, Conference Room, 3320 Old Garner 
Road, Raleigh, N.C. 27626-0500. 



643 



7:7 NORTH CAROLINA REGISTER July I, 1992 



PROPOSED RULES 



JXeason for Proposed Action: To require 
licensees to view a video training tape within 90 
days of licensure. 

O omment Procedures: Interested persons may 
present their views either orally or in writing at the 
hearing. In addition, the record of hearing will 
be open for receipt of written comments until the 
hearing. Written comments must be delivered to: 
Mr. James F. Kirk, NC A larm Systems Licensing 
Board, 3320 Old Garner Rd., P.O. Box 29500, 
Raleigh, N.C. 27626-0500. 

CHAPTER 11 -N.C. ALARM SYSTEMS 
LICENSING BOARD 

SECTION .0200 - PROVISIONS FOR 
LICENSEES 

.0208 TRAINING REQUIREMENTS FOR 
ALARM LICENSEES 

Every Alarm licensee shall satisfactorily com- 
plete viewing of a video training session offered 
by the Alarm Systems Licensing Board. This 
video training session will be offered quarterly 
and must be completed by the licensee within 90 
days of licensure. 

Statutory Authority G.S. 74D-5(a)(2). 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 



Co 



- omment Procedures: The Commission would 
also like to receive comment on the necessity to 
establish fees for municipal or industrial laborato- 
ries and commercial laboratories at the same level. 
The proposed Rules set the minimum fees at dif- 
ferent levels. 

All persons interested in this matter are invited to 
attend. Comments, statements, data, and other 
information may be submitted in writing prior to, 
during, or within 15 days after the hearing or may 
be presented orally at the hearing. Persons de- 
siring to speak will indicate their intent at the time 
of registration at the hearing. Statements may be 
limited to three minutes at the discretion of the 
hearing officer. Submittals or written copies of 
oral statements are encouraged. Send comments 
to William Edwards Jr., EHNRjDEM Laboratory 
Section, 4405 Reedy Creek Road, Raleigh, North 
Carolina 27607-6445, Telephone (919) 733-3908. 

1 his Rule affects the expenditures or revenues 
of State and local funds. A fiscal note was sub- 
mitted to the Fiscal Research Division on April 
29 1992, OSBM on April 29, 1992, N.C. League 
of Municipalities on May 4, 1992, and 1S.C. As- 
sociation of County Commissioners on May 4, 
1992. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2H - PROCEDURES FOR 
PERMITS: APPROVALS 



J V otice is hereby given in accordance with G.S. 
150B-21.2 that the Environment, Health, and Na- 
tural Resources intends to amend rules cited as 
15 A NCAC 2H .0801 - .0810. 

1 he proposed effective date of this action is No- 
vember 2, 1992. 

1 he public hearing will be conducted at 7:00 
p.m. on July 21, 1992 at the Ground Floor Hear- 
ing Room, Archdale Building, 512 North 
Salisbury Street, Raleigh, North Carolina. 

IVeason for Proposed Action: To add certif- 
ication requirements for; groundwater programs; 
toxic organic analyses; certain inorganic analyses; 
Class I & II wastewater treatment plant labs and 
civil penalties for certification infractions. Certif- 
ication fees are increased to fund personnel and 
operating expenses for the expanded program. 



SECTION .0800 - LABORATORY 
CERTIFICATION 

.0801 PLRPOSE 

These Regulations Rules set forth the require- 
ments for state certification of commercial, mu- 
nicipal, and industrial laboratories te which 
perform water analyses required by the Water 
and Air Quality Reporting Act, G.S. 143-215.63 
et seq; Environmental Management Commission 
Regulations Rules for Surface Water Monitoring 
and Reporting found in Subchapter 2B of this 
Chapter, Section .0500; aft4 Environmental 
Management Commission Regulations Rules for 
Local Pretreatment Programs found in 15A 
NCAC 2H .0900; and the Environmental Man- 
agement Commission Rules for Groundwater 
Classification and Standards found in 15A 
NCAC 2L .0100, .0200. and .0300. 

Statutory Authority G.S. 143-215. 3(a) ( 1 ); 
143-215.3(a)(I0). 



7:7 NORTH CAROLINA REGISTER July I, 1992 



644 



PROPOSED RULES 



.0802 SCOPE 

These Rules apply to commercial laboratories 
and Class IU a&4 W- municipal or industrial 
wastewater treatment plant laboratories which 
perform water analyses for persons subject to 
G.S. 143-215.1, 143-215.63, et seq.; e* the Envi- 
ronmental Management Commission Rules for 
Surface Water Monitoring and Reporting found 
in Subchapter 2B of this Chapter, Section .0500; 
and Groundwater rules found in L5 NCAC 2L 
.0100. .0200, and .0300. These Rules also apply 
to all wastewater treatment plant laboratories for 
municipalities having Local Pretreatment Pro- 
grams as found regulated in 15A NCAC 2H 
.0900. Municipal and industrial laboratories that 
perform analyses for twe- three or less of the pa- 
rameters listed in Rule .0804 of this Section ate 
exempt may be exempted from the requirements 
of these Rules. Written requests for the ex- 
emption will be considered by the State Labora- 
tory on a case by case basis. 

Statutory Authority G.S. I43-2I5.3(a)(l ); 
143-215.3(a)(10). 

.0803 DEFINITIONS 

The following terms as used in this Section shall 
have the assigned meaning: 

( 1 ) Commercial Laboratory means any labo- 
ratory, including its agents or employees, 
which is seeking to analyze or is analyzing 
water samples for others for a fee^ 

(2) State means the North Carolina Division 
of Environmental Management of the De- 
partment of Environment. Health, and Na- 
tural Resources, aft4 Community 
Development, or its successor. 

(3) State Laboratory means the Laboratory 
branch Section of the North Carolina Divi- 
sion of Environmental Management, or its 
successor. 

(4) Lnacceptable results on performance 
evaluation samples or split samples are those 
that vary by more than ptas »f minus 2S 
percent ef th# value the 99 percent confi- 
dence interval or three standard deviations 
as determined by the State Laboratory 
Lnited States Environmental Protection 
Agency If" PA) or the State Laboratory may 
adopt specific variance limits for a particular 
sample or parameter. 

(5) Certification is a declaration by the State 
that the personnel, equipment, records, 
quality control procedures, and methodol- 
ogy cited by the applicant are accurate and 
that the applicant's proficiency has been 
considered and found to be acceptable. 

(6) Decertification is loss of certification. 



(7) Recertification is reaffirmation of certif- 
ication. 

(8) Municipal Laboratory means a laboratory, 
including its agents or employees, operated 
by a municipality or other local government 
to analyze samples from its wastewater 
treatment plant(s). 

(9) Industrial Laboratory means a laboratory, 
including its agents or employees, operated 
by an industry to analyze samples from its 
wastewater treatment plant(s). 

(10) Pretreatment Program means a program 
of waste pretreatment requirements set up in 
accordance with 15A NCAC 2H .0900 and 
approved by the Division of Environmental 
Management. 

(11) Inaccurate data or other information 
means data or information that is in any wa 
incorrect, mistaken or not accurate. 



(12) falsified data or information means data 
or information which has, for whatever rea- 
son, been knowingly made false or untrue 
by alteration, fabrication, omission, substi- 



tution, or mischaracterization. 



(13) Subcontracting samples means one com- 
mercial laboratory sends client samples to 
another commercial laboratory for analyses. 

( 14) Analytical Chemistry experience means 
experience analyzing samples in a chemistry 
laboratory or supervising a chemistry labo- 
ratory that analyzes samples. 



Statutory Authority 
I43-215.3(aj(10). 



G.S. 143-215.3(a)(l); 



.0804 PARAMETERS FOR WHICH 

CERTIFICATION MAY BE REQUESTED 

(a) Commercial laboratories nood are required 
to obtain certification only for parameters which 
will be reported by the client to comply with the 
monitoring State surface water monitoring 
groundwater, and pretreatment regulations. 
Rules. Municipal and Industrial Laboratories 
nood are required to obtain certification only for 
parameters which will be reported to the State to 
comply with State surface water monitoring, 
groundwater, monitoring and pretreatment rogu 
lations. Rules. 

(b) A listing of selected certifiable inorganic pa- 
rameters follows: 

(1) BOD 

(2) COD 

(3) Chloride 

(4) Chlorine, total residual 
[5] (44 Conform, fecal ML 
(6| £5} Coliform, total ME 

(7) (4) Conform, fecal tube 

(8) & Coliform. total tube 



645 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



[9\ Co\ot a Platinum Cobalt 


(21) f44) Mercury 


(10) Color, ADM I 


(48) Solonium 


( 1 1) Conductivity 


(22) (43) Ammonia nitrogen 


(12) (8) Cyanide 


(23) f30) Total Kjeldahl nitrogen (TKN) 


(131 (9) Fluoride 


(24) f34) Nitrate plus nitrite nitrogen 


(49) Groaoo a&4 Q+l 


(251 Nitrate nitrogen 


(14) (44) Hardness, total 


(26) Nitrite nitrogen 


(15) (43) MB AS 


(27) f33) Total phosphorus 


(161 f^l Metals, Group I - regular level - 


(28) (34) Orthophosphate 


Atomic Absorption Flame (AAF), In- 


(29) Oil and Grease - Water 


ductively Coupled Plasma (ICP), or 


(30) Oil and Grease - EPA Method 9071 


colormetric, if applicable. 


(3Fi(04) P H 


(A) (a) aluminum 


(32) f3$) Phenols 


(B) arsenic - ICP or colormetric only 


(33) Residue, settleable 


(C) (fe) beryllium 


(34) (36) Residue, total 


(D) fe) cadmium 


(35) Residue, total dissolved 180°C 


(E) (4) chromium, total 


(36) (32) Residue, total suspended 


(Fl fe) cobalt 


(37) Sulfate 


(Gl fi) copper 


(38) Sulfide 


(H) (g) iron 


(39) Sulfite 


(I] f» lead 


(40) Total Organic Carbon (TOC) 


fi) maganooo 


(41) (3S) Turbidity 


(J) manganese 


(42) TCLP Extraction EPA Method 1311 - 


(K) (t> nickel 


Metals and/or Organics. Must be ac- 


(L) selenium - ICP only 


companied by the appropriate metals and 


(M) vanadium 


organics certifications. 


(N) fk)zinc 


(c) Each of the twenty analytical categories 


(17) (44) Metals, Group II - regular level - 


listed in this Paragraph will be considered a 


Atomic Absorption Flame (AAF), In- 


certifiable parameter. A listing of certifiable or- 


ductively Coupled Plasma (ICP), or 


ganic parameters follows: 


colormetric, if applicable. 


(1) Purgeable I lalcocarbons - EPA method 


(A) fa) antimony 


601 


(B) fb) silver 


- Standard Methods 6230B, 6230D 


(CI fe) thallium 


- EPA method 5030 plus 8010 


(18) Metals, Group I - low level - Atomic 


- EPA method 5030 plus 8021 


Absorption Graphite Furnace (GF) or 


(2) Pureeable Aromatics - FPA method 602 


hydride 


- Standard Methods 6220B, 6230 D 


(A) aluminum 


- EPA method 5030 plus 8020 


(B) arsenic - GF or hydride 


- EPA method 5030 plus 8021 


(C) bervllium 


(3) Acrolein, Acrvlonitrile, Acetonitrile - 


(D) cadmium 


EPA method 603 


(E) chromium, total 


- EPA method 5030 plus 8030 


(F) cobalt 


(4) Phenols - EPA Method 604 


(G) copper 


- Standard Methods 6420B 


(H) iron 


- EPA Method 8040 with 3500 series ex- 


(I) lead 


tractions 


(J) manganese 


(5) Benzidines - EPA Method 605 


(K) nickel 


(6) Phthalate Esters - EPA Method 606 


(F) selenium - GF or hvdride 


- EPA Method 8060 or 8061 with 3500 


(M) vanadium 


series extractions 


(N) zinc 


(7) Nitrosamines - FPA Method 607 


(19) Metals, Group II - low level - Atomic 


- EPA Method 8070 with 3500 series ex- 


Absorption Graphite Furnace (GF) 


tractions 


(A) antimony_ 


(8) Oraanochlorine Pesticides and PCBs - 


(B) silver 


EPA method 608 


(C) thallium 


- Standard Methods 6630B, 6630C 


(44) Arsenic 


- FPA method 8080, 8081 with 3500 series 


(20) f44) Barium 


extractions 


7:7 NORTH CAROLINA REGISTER July 1, 1992 646 



PROPOSED RULES 



Nitroaromatics and Isophorone 
method 609 



: E PA method 8090 with 3050 series ex- 
tractions 



(9) Nitroaromatics and Isophorone - EPA 
rr 

tr 

(10) Polvnuclear .Aromatic Hydrocarbons - 
EPA method 610 
- Standard Methods 6440B 
I E PA method SI 00 with 3500 series ex- 
tractions 

Haloethers - EPA method 611 
: EPA method SI 10 with 3500 series ex- 
tractions 



on 

Q21 



Chlorinated Hydrocarbons EPA 
method 612 
- EPA methods 8120. 8121 with 3500 se- 
ries extractions 
13) Purgeahle organics - EPA methods 624, 
1^24 
-Standard Methods 6210B. 6210D 



lus 

Ills 



240 



<J±1 



S2NJ 



- EPA method 5030 
- EPA method 5030 

Base Neutral and Acid Organics 
methods 625. 1625 " 

- Standard Methods 6410B 



EPA 



: EPA methods 8250. 8270 with 3500 se- 
ries extractions 
( 15) Chlorinated Acid Herbicides - Standard 
methods 5Q9B. 6640 B 
- EPA methods 8150, 8151 with 3500 se- 



ries extractions 



(16) 
Oil 

Oil 

H9) 



EPA 



Organophosphorus Pesticides 

methods 8140, S 14 1 with 3500 series ex- 
traction-. 

Total Petroleum Hydrocarbons - (TPH) 
California GC Method with EPA method 
5030 and 3550 extractions 
Nonhalogenated Volatile Organics - EPA 
Method 8015A 

N-Methvlcarbamates - EPA method 



8318 

- EPA Method 632 
20) ~ L2. Dibromoethane (EDB) - EPA 



G.S. 143-2153(a)(l); 



Method 504 

Statutory? A uthority 
143-215.3(a)(10). 



.0805 CERTIFICATION AND RENEWAL OF 
CERTIFICATION 

(a) Prerequisites and requirements for Certif- 
ication. The following requirements must be 
met prior to certification. Once certified, failure 
to comply with any of the following items will 
be a \lolation of certification requirements. 
(1) Laboratory' Procedures. Analytical meth- 
ods, sample preservation, sample contain- 
ers and sample holding times shall 
conform to those requirements found in 



40 CFR- 136.3, Federal Register, Vol. 49, 
p. 43234 (October 26, 1984); a^ or 
Federal Register, Vol. 50, p. 690 (January 
4, 1985); as oubmittod fey ike Environ 
m e ntal Protection Agency, or Federal 
Register, Vol. 5L p. "23692 (January 3JL. 
1986); or Federal Register, Vol. 56 rx 
50758 (October 8j 1991) for wastewater 
and surface water analyses; and 15A 
NCAC 2L .0112 of the State 
Groundwater rules for groundwater, soils, 
sediments, and sludge analyses. All sam- 
ples must meet the preservatives and 
holding time requirements in the October 
26, 1984. Federal Register. These and 
subsequent amendments and editions are 
incorporated by reference. This material 
is available for inspection at the State 
Laboratory, 4405 Reedv Creek Road, 
Raleigh, North Carolina 27607. Copies 
of the Federal Register may be obtamed 
by requesting a copy of the Code of Fed- 
eral Regulations. 40 CFR-136.3. parts 
100-149 from the Superintendent of Doc- 
uments, U.S. Goyernment Printing Office, 
Washington. D.C. 20402 at a cost of thirty 
dollars ($30.00). Copies of 15A NCAC 
2L may be obtained from 1 ' NR. Divi- 
sion of Environmental Management, 
Groundwater Section. P.O. Box 29535, 



Raleigh, N.C. 27626-0535 at no charge. 



The method for total petroleum 
hydrocarbons shall be the California Gas 
Method, 



Chromatograph 
D.M., and Others, 



Eisenberg, 
L>85, Guidelines for 
addressing fuel leaks: California Regional 
Quality Control Board San Francisco Bay 
Region. 43 pp. or F H N R Guidelines for 
Remediation of Soil Contaminated by 
Petroleum The method for N- 

Methvlcarbamates shall be EPA Method 
S3 IS or EPA Method M2. The method 
for low level 1.2- Dibromoethane (EDB) 
shall be EPA method 504. Other labora- 
tory procedures as may be approved by 
the Director of the Division of Environ- 
mental Management may be used. 



(2) Performance Evaluations. Each labora- 
tory must demonstrate satisfactory ac- 
ceptable performance on evaluation 
samples submitted by the State Labora- 
tory or EPA. 
(A) Municipal and Industrial laboratories 
must participate in the annual Environ- 
mental Protection Agency Discharge 
Monitoring Report Quality Assurance 
(EPA DMR QA) Study by analyzing the 
sample supplied hv I PA and reporting 



64" 



/:/ 



\ORTH CAROLINA REGISTER July I, 1992 



PROPOSED RULES 



data produced. The State Laboratory will 
submit samples to any laboratory not eli- 
gible to receive the EPA samples. 

(B) Commercial laboratories must partic- 
ipate in the EPA Water Pollution (WP) 
Studies by analyzing the samples supplied 
by EPA and reporting data produced. 
The State Laboratory will submit samples 
to any laboratory not eligible to receive 
the EPA samples. When two samples for 
the same parameter are submitted and 
analyzed at the same time, an unaccepta- 
ble result on one or both samples will be 
considered the first unacceptable result for 
certification purposes and a rerun sample 
will be submitted. 

(C) Laboratories requesting initial certif- 
ication must submit an acceptable per- 
formance sample result for each parameter 
for which performance samples are avail- 
able. Laboratories that submit two un- 
acceptable results for a particular 
parameter must then submit two consec- 
utive acceptable results for that parameter 
prior to initial certification. 

(D) If performance samples are not avail- 
able for a parameter, certification for that 
parameter will be based on the proper use 
of the approved procedure, the on-site in- 
spection, and adherence to the other re- 
quirements in this Section. Analysis of 
split samples may also be required. 

(E) In the Gas Chromatography, Liquid 
Chromatography, or Gas Chromatograph 
Mass Spectrometer Categories, a labora- 
tory's performance on a specific analytical 
method may be determined by the labo- 



ratory's ability to acceptably analyze se- 
lected indicator chemicals as specified by 
the State Laboratory during a perform- 
ance evaluation. 
(3) Supervisory Requirements. 

(A) The supervisor of a commercial labo- 
ratory must have a minimum of a B.S. or 
A.B. degree from an accredited college or 
university in chemistry or closely related 
science curriculum plus a minimum of 
two years laboratory experience in analyt- 
ical chemistry, or a two year associate de- 
gree from an accredited college, university, 
or technical institute in chemistry tech- 
nology, environmental sciences, or closely 
related science curriculum plus a mini- 
mum of four years experience in analytical 
chemistry. Non dogroo ouporvioors must 
hav e at- least si* y e aro laboratory oxpori 



(B) The supervisor of a municipal or in- 
dustrial waste water treatment plant labo- 
ratory must have a minimum of a B.S. or 
A.B. degree from an accredited college or 
university in chemistry or closely related 
science curriculum plus a minimum of six 
months laboratory experience in analytical 
chemistry, or a two year associate degree 
from an accredited college, university, or 
technical institute in chemistry technol- 
ogy, environmental sciences, or closely 
related science curriculum plus a mini- 
mum of two years experience in analytical 
chemistry. Non-degree supervisors must 
have at least six years laboratory experi- 
ence in analytical chemistry. 

(C) All laboratory supervisors are subject 
to review by the State Laboratory. One 
person may serve as supervisor of no 
more than two laboratories. The super- 
visor shall provide personal and direct 
supervision of the technical personnel and 
be held responsible for the proper per- 
formance and reporting of all analysis 
made for these Regulations. Rules. The 
supervisor must work in the laboratory 
or visit the laboratory once each day. If 
the supervisor is to be absent, the super- 
visor shall arrange for a substitute capable 
of insuring the proper performance of all 
laboratory procedures, however, the sub- 
stitute supervisor can not be in charge for 
more than three consecutive weeks. Ex- 
isting laboratory supervisors that do not 
meet the requirements » this Paragraph 
of this Rule may be accepted after review 
by the State Laboratory and meeting all 
other certification requirements. Previous 
laboratory-related performance will be 
considered when reviewing the qualifica- 
tions of a potential laboratory supervisor. 

(4) Laboratory Manager. Each laboratory 
must designate a laboratory manager and 
include his name and title on the applica- 
tion for certification. The laboratory 
manager shall be administratively above 
the laboratory supervisor and will be in 
responsible charge in the event the labo- 
ratory supervisor ceases to be employed 
by the laboratory' and will be responsible 
for filling the laboratory supervisor posi- 
tion with an acceptable replacement. At 
commercial laboratories, where the owner 
is the laboratory supervisor, the labora- 
tory manager and laboratory supervisor 
may be the same person if there is no one 
administratively above the laboratory 
supervisor. 



7:7 NORTH CAROLINA REGISTER July I, 1992 



648 



PROPOSED RULES 



(5) f-ty Application. Each laboratory' request- 

ing state certification or certification re- 
newal shall submit an application in 
duplicate to the State Laboratory. Each 
application wtH be reviewed te d e t e rmin e 
the adequacy ef personnel, oquipmont, 
records, quality control procedures, a«4 
methodology. After receiving a com- 
pleted application and prior to issuing 
certification, a representative of the State 
Laboratory may visit each laboratory to 
verify the information in the application 
and the adequacy of the laboratory. 

(6) (4) Facilities and equipment. Each labo- 

ratory requesting certification must con- 
tain or be equipped with the following 
except Class I and I_I wastewater treatment 
plants may be exempted from Part (A), 
(B), or (_E| of this Subparagraph if they 
are performing three or less of the 
certifiable parameters: 

(A) A minimum of 150 sq. ft. of laboratory 
space; 

(B) A minimum of 12 linear feet of labora- 
tory bench space; 

(C) A sink with hot and cold water; 

(D) Adequate lighting, cooling, and heating; 

(E) An analytical balance capable of 
weighing 0.1 mg, mounted on a heavy 
shock proof table; 

(F) A refrigerator of adequate size that will 
maintain temperature of 4^Gj four degrees 
Celsius; 

(G) A-ft EPA approved &f a current copy ef 
"Standard Methods fof the Analysis »f 
Wat e r and Wastewater" e* E P As "Moth 



»4* fef Chemical Analysis »f Water ami 
W r astes"; A copy of each approved ana- 
lytical procedure being used in the labo- 
ratory'; 

(H) A source of distilled or deionized water 
that will meet the minimum criteria of the 
approved methodologies; 

(I) Glassware, chemicals, supplies, and 
equipment required to perform all analyt- 
ical procedures included in their certif- 
ication. 
(7) (4} Analytical Quality Control Program. 
Each laboratory shall develop and main- 
tain a document outlining the analytical 
quality control practices used for the pa- 
rameters included m their certification. 
Supporting records shall be maintained as 
evidence that these practices are being ef- 
fectively carried out. The quality control 
program document shall be available for 
inspection by the State Laboratory. a«d 
includ e The following are requirements 



for certification and must be included in 
each certified laboratory's quality control 
program. 

(A) All analytical quality control data per- 
tinent to each certified analysis must be 
filed in an orderly manner so as to be 
readily available for inspection upon re^ 
quest. 

(B) Excluding Oil and Grease, all residue 
parameters, TCLP extractions, residual 
chlorine, and conform, analyze e«e dupli 
eate sample &h4 one known standard in 
addition to calibration standards each day 
samples are analyzed to document proci 
sie* a&4 accuracy. Analyze one sus- 
pended residue, one dissolved residue, one 
residual ehlonne and one oil and grease 
standard quarterly. For residual chlorine, 
all calibration standards required by the 
approved procedure in use and by EPA 
must be analyzed. 

(C) Excluding Oil and Grease, analyze 10 
percent of all samples in duplicate to 
document precision. Laboratories ana- 
lyzing less than ten samples per month 
must analyze at least one duplicate each 
month samples are analyzed. 

(D) f&} Any quality control procedures re- 
quired by a particular approved method 
shall be considered as required for certif- 
ication for that analysis. 

(E) fEty All quality control requirements as 
set forth by the State Laboratory. 

(F) ffc} A corrective action policy requiring 
that- at- Any time quality control results 
indicate an analytical problem, resolve the 
problem et&4 r e run a»y- oamplos involv e d. 
must be resolved and any samples in- 
volved must be rerun if the holding time 
has not expired. 

(G) (-F-f A policy requiring that All analyt- 
ical records must be maintain od available 
for a period of three years. 

(11) .All laboratories must use printed labo- 
ratory bench worksheets that include a 
space to enter the signature or initials of 
the analyst, date of analyses, sample iden- 
tification, volume of sample analyzed, 
value from the measurement system, fac- 
tor and final value to be reported and each 
item must be recorded each time samples 
are anal\/ed. I he date and time BOD 
and coliform samples are removed trom 
the incubator must be included on the 
laboratory worksheet. 

(1) For anaLvtical procedures requiring 
analysis of a series of standards, the con- 
centrations of these standards must 



649 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



bracket the concentration of the samples 
analyzed. One of the standards must have 
a concentration equal to the laboratory's 
lower reporting concentration for the pa- 
rameter involved. For metals by AA or 
ICP, a series of at least three standards 
must be analyzed along with each group 
of samples. For colormetric analyses, a 
series of five standards or standards as set 
forth in the analytical procedure must be 
analyzed to establish a standard curve. 
The curve must be updated as set forth in 
the standard procedures, each time the 
slope changes by more than 10 percent at 
mid-range, each time a new batch of 
chemicals is used, each time a new stock 
standard is prepared, or at least every 12 
months. Each analyst performing the 
analytical procedure must produce a 
standard curve. 



thermometer and 



made. 



and proper corrections 



(J) Each day an incubator, oven, waterbath 
or refrigerator is used, the temperature 
must be checked, recorded, and initialed. 
During each use, the autoclave maximum 
temperature and pressure must be 
checked, recorded, and initialed. 

(K) The analytical balance must be checked 
with one clase S standard weight each day 
used and at least three standard weights 
quarterly. The values obtained must be 
recorded in a log and initialed by the ana- 
lyst. 

(L) Chemicals must be dated when received 
Reagents must be 



and when opened. 



dated and initialed when prepared. 

(M) A record of date collected, time col- 
lected, sample collector, and use of proper 
preservatives must be maintained. 

(N) At any time, a laboratory receives 
samples which do not meet sample col- 
lection, holding time, or preservation re- 
quirements, the laboratory must notify the 
sample collector or client and secure an- 
other sample if possible. If another sam- 
ple cannot be secured, the original sample 
may be analyzed but the results reported 
must be qualified with the nature of the 
infraction(s) and the laboratory must no- 
tify the State Laboratory about the 
infraction(s). The notification must in- 
clude a statement indicating whether or 
not the problem has been resolved for fu- 
ture samples. 

(O) All thermometers must meet National 
Institute of Standards and Technology 
(NIST) specifications for accuracy or be 
checked against a NIST traceable 



(2) 



(3) 

(c) 
(1) 



(8) (9) Decertification Requirements. Munic- 
ipal and industrial laboratories that cannot 
meet initial certification requirements 
must comply with the Decertification Re- 
quirements as set forth in Rule .0807 (&} 
(e) of this Section, 
(b) Issuance of Certification. 

(1) In the absence of substantial deficiencies, 
certification will be issued by the Director, 
Division of Environmental Management, 
Department of Environment, Health, and 
Natural Resources, a«4 Community De- 
volopmont, or his delegate, for each of the 
applicable parameters requested. 
Initial certifications will be issued for pro- 
rated time periods to schedule all certif- 
ication renewals on the first day of 
January. 

Initial certification shall be valid for up to 
three years from date of issue. 

Maintenance of Certification. 
To maintain certification for each param- 
eter, a certified laboratory must analyze 
up to throo five performance evaluation 
samples p_er parameter per year submitted 
by the State Laboratory or EPA as an 
unknown. Laboratories submitting un- 
acceptable results on a performance eval- 
uation sample may be required to analyze 
more than three five samples per year. 

(2) In addition, the State Laboratory may re- 
quest that samples be split into two equal 
representative portions, one part going to 
the state and the other to the certified 
laboratory for analysis. 

(3) The State laboratory may submit or re- 
quire clients to submit blind performance 
samples or split samples under direction 
of State Laboratory personnel. 

{4} frty A certified laboratory will be subject to 
periodic announced or unannounced in- 
spections during the certification period 
and shall make time and records available 
for inspections and must supply copies of 
records for any investigation upon written 
request by the State Laboratory. 

(4f The Stato Laboratory will maintain a fe* 
ef certified commercial laboratories a«4 
the parameters fof which the laboratories 
have boon certified. The list- wiH be Fe- 
visod over/ si* months. 

{4) The State Laboratory will maintain a hst 
ef certified municipal ftft4 industrial labo 
ratorios a«4 the parameters fe* which the 
laboratories have boon cortifiod. The fe* 
will be revised ovory si* months. 



7:7 NORTH CAROLINA REGISTER July I, 1992 



650 



PROPOSED RULES 



(d) 
(1) 



(2) 



(e. 



(5) (4) A certified laboratory must provide the 
State Laboratory with written notice of 
laboratory supervisor or laboratory man- 
ager changes within 30 days of such 
changes. 

(6) A certified laboratory must submit written 
notice of any changes of location, owner- 
ship, address, name, or telephone number 
within 30 days of such changes. 

Certification Renewals. 
Applications for certification renewal will 
must be submitted in duplicate to the 
State Laboratory 30 days in advance of 
expiration of certification. 
Certification renewals of laboratories shall 
be issued for u£ to three years, with the 
e xception that renewals fef existing corti 
fied laboratories may fee prorated te- make 
aft certification renewals 4we »» the fifst 
tlay eft January'. 

Data reporting. 

( 1 ) Certified commercial laboratories must 
make data reports to their clients that are 
signed bv the laboratoiy supervisor. This 
duty may be delegated in writing; how- 
ever, the responsibility shall remain with 
the supervisor. 

(2) Whenever a certified commercial labora- 
tory refers or subcontracts samples to an- 
other certified laboratory for analyses, the 
referring laboratory must supply the date 
and time samples were collected to insure 
holding times are met. 

The initial client requesting the analyses 
must receive the original or a copy of the 
report made by the laboratory that per- 
forms the analyses. 
(f) fe) Discontinuation of Certification 

(1) A laboratory may discontinue certification 
for any or all parameters by making a 
written request to the State Laboratory. 

(2) After discontinuation of certification, a 
laboratory may be recertified by meeting 
the requirements for initial certification, 
however, laboratories that discontinue 
certification during any investigation shall 
be subject to Rule .0808 of this Section. 

Statutory Authority G.S. 143-21 5.3( a) ( 1 ); 
143-215.3(a)(I0). 

.0806 FEES ASSOCIATED WITH 
CERTIFICATION PROGRAM 

(a) C e rtification h«4 Certification R e n e wal 
Fees. Before being granted certification »f tes- 
tification renewal, laboratories shall pay t» the 
state a fee eft twenty dollars ($20.00) fof eaeh 
parameter fop which certification is requested. 



however, the rninimum fee wft± be tw-© hundred 
6% dollars ($250.00). 

fb) Certification Maintenance) Food. Aft or eep- 
tification »f certification renewal has boon icsuod 
certified laboratories wift pay te the state a eep- 
tifioation maintenance fee eft tw-e- hundred fifty 
dollars ($250.00) eaeh year. Certification main 
tenanco fees v«40 net be required fef those years 
ft* which c e rtification e>f c e rtification renewal ape 

I OQ T-I II V^J . I IIl-T.n-' rC^TJ LU \J \XW C7TT U 1 VJ \Jl\J I \,' TT^^ rTi^T 

day eft January e* the certification anniversary 

(a) Municipal and industrial laboratories must 
pay an annual fee of fifty dollars ($50.00) for each 
inorganic parameter plus one hundred dollars 
($100.00) for each organic parameter; however. 
the minimum fee will be one thousand dollars 
($1.000.00) per year. 

(b) Commercial laboratories located in North 
Carolina must pay an annual fee of fifty dollars 
($50.00) for each inorganic parameter plus one 
hundred dollars ($100.00) for each organic pa- 
rameter; however, the minimum fee will be two 
thousand dollars ($2.000.00) per year. 

(c) Commercial laboratories located outside of 



North Carolina must 



pay an 



annual fee of 



seventy-five dollars ($75.00) for each inorganic 
parameter plus one hundred and fittv dollars 
($150.00) for each organic parameter; however, 
the minimum fee will be three thousand five 
hundred dollars ($3,500.00) per year. 

(d) feft Prior to receiving initial certification a 
laboratory must pay the appropriate fee as spec- 
ified in Paragraph (a), (b), or [c} of this Rule. 
Initial certification tees may will be prorated m 
order on a semi-annual basis to make all certif- 
ication renewals due on the first day of January. 

(e) Once certified, a laboratory' must pav the 
full annual parameter fee for each parameter 
added to their certificate. 

(f) A laboratory decertified for all parameters 
must pay initial certification fees prior to recer- 
tification. 

(g) A laboratory decertified for one or more 
parameters must pay a fee of one hundred dollars 
($100.00) for each parameter for which it was 
decertified prior to recertification. 

(h) (d) Out-of-state laboratories shall reimburse 
the state for actual travel and subsistence costs 
incurred in certification and maintenance of cer- 
tification. 

(i) Annual certification fees are due by De- 
cember 31 of each year. 

[jl A fifty dollars ($50.00) late payment fee 
must be paid when annual certification fees are 



not paid by the date due. 

(k) For laboratories seeking initial certification 
or recertification. the State Laboratory will pro- 



651 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



vide two performance samples for each parameter 
at no charge; however, a fee of one hundred dol- 
lars ($100.00) per sample will be charged for all 
samples after the first two have been supplied. 
(1| Metals group I and metals group II will be 
considered as single parameters when calculating 
fees. 

Statutory Authority G.S. 143-215 3(a) ( 1 ); 
143-2153(a)(10). 

.0807 DECERTIFICATION AND CIVIL 
PENALTIES 

(a) Laboratory Decertification. Once cortifiod, 
A laboratory may lose its certification be decer- 
tified for any or all parameters by failing to for 
up to one year for any of the following inf- 
ractions: 

(1) Failing to maintain the facilities, or re- 
cords, or personnel, or equipment, or 
quality control program as set forth in the 
application, and these Regulations; Rules; 
or 

(2) Submit truthful a«4 accurate Submitting 
inaccurate data reports; or other informa- 
tion; or 

(3) Failing to pay required fees by the date 
due; or 

(4) Failing to discontinue supplying data for 
clients or programs described in Rule 
.0802 of this Section during periods when 
a parameter decertification is in effect; or 

(5) Failing to submit a split sample to the 
State Laboratory as reques' 

(61 

£21 

m 

£21 



State Laboratory as requested; or 

Failing to use approved methods of 
analysis; or 

Failing to report laboratory supervisor or 
equipment changes within 30 days of such 
changes; or 

Failing to report analysis of performance 
evaluation samples submitted by EPA or 
the State Laboratory within the specified 
time limits; or 

Failing to allow an inspection by an au- 
thorized representative of the State labo- 
ratory; or 

(10) Failing to supply analytical data re- 
quested by the State laboratory; or 

(11) Failing to submit a renewal application 
30 days prior to the expiration date of the 
certificate; or 

(12) Failing to meet required sample holding 
times; or 

(13) Failing to respond to requests for infor- 
mation by the date due; or 

( 14) Failing to comply with any other terms, 
conditions, or requirements of this Section 
or of a laboratory certification. 



(b) Parameter Decertification. Onc e certified, 
A laboratory may loooo its certification fof a- re- 
ceive a parameter decertification for by failing to: 

(1) Obtain acceptable results on two consec- 
utive blind and or announced perform- 
ance evaluation samples submitted by 
EPA or the State Laboratory; or 

(2) Obtain acceptable results on throo two 
consecutive blind and or announced split 
samples that have also been analyzed by 
the State Laboratory, ef 

£4} Submit a split sampl e te the State Labo 

rat or/ as roquostcd; ef 
(4} 14se approv e d methods ef analyoio; &f 
(4) Report e quipment ohangoo that would a£- 

feet its ability te perform the test within 

30 days ef such changes; e* 
(4) Report analysis e( performance evaluation 

samples submitted by- the State Labora 

t j-i n .- n:itliin I i 1 il-ii t a r~i T r-f* .-»fm>f - j-^i «- 
WJl T "III UJ I JIT UU T CT UfT I \_^JVIt_»l [ ^^r 

£?) Maintain records a«4 perform quality 
controls as set forth by those Regulations 
a»4 the State Laboratory fof a particular 
paramotor; e* 

f&) Miiintain equipment required fef a partic 
«laf parameter. 

(c) Falsified data. A laboratory that submits 
falsified data or other information may be decer- 



tified for all parameters for up to two years. 

(d) Decertification Factors. In determining a 
period of decertification, the Director shall rec- 
ognize that any harm to the natural resources of 
the State arising from violations of Rules in this 
Section nia\ not he immediatch observed and 
ma\ be incremented or cumulative with no dam- 
age that can be immediately observed or docu- 
mented. Decertification for periods up to the 
maximum may be based on any and or a com- 



bination of the following factors to be consid- 
ered: 

( 1) The degree and extent of harm, or po- 
tential harm, to the natural resources of 
the State or to the public health, or to 
private property resulting from the vio- 
lation; 

(2) I'he duration, and gravity of the violation; 

(3) The effect, or potential effect , on ground 
or surface water quantity or quality or on 
air quality; 

(4) Cost of rectifying any damage; 

(5) The amount of money saved by non- 
compliance; 

(6) As to violations other than submission 
of falsified data or other information, 
whether the violation was committed 
willfully or intentionally; 

(7) The prior record of the laboratory' in 
complying or failing to comply with any 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



652 



PROPOSED RULES 



State and federal laboratory rules and reg- 
ulations; 

(8) The cost to the State of investigation and 
enforcement procedures; 

(9) Cooperation of the laboratory in discov- 
ering, identifying, or reporting the vio- 
lation; 

(10) Measures the laboratory implemented to 
correct the violation or abate the effect of 
the violation, including notifying any af- 
fected clients; 

(11) Measures the laboratory implemented to 
correct the cause of the violation; 

( 12) Any other relevant facts. 

(e) fe> Decertification Requirements. 
(1) A decertified laboratory is not to analyze 
samples for the decertified parameters for 
programs described in Rule .0802 of this 
Section or clients reporting to these pro- 
grams. 

A decertified commercial laboratory must 
supply written notification of the decertif- 
ication to clients with Division of Fnvi- 



01 A 



ronmental Management reporting 
requirements. Within 30 davs, the decer- 
tified laboratory' must supply the State 
I aboratory with a list of clients involved 
and copies of the notices sent to each. 

(3) f2f A decertified commercial laboratory' 
that has received a parameter decertif- 
ication may must make arrangements to 
supply analysis through a another certified 
laboratory during any decertification peri- 
ods of notify clients that- the analysis can 
sot be supplied. The decertified 
laboratory must supply the State Labora- 
tory with the name of the laboratory to 
be used. a«4 tht» cliont(s) involv e d. 

(4) A commercial laboratory decertified for 
all parameters cannot subcontract samples 
for analyses to other certified laboratories 
during the decertification period. 

(5) <rM A decertified municipal or industrial 
laboratory must make arrangements to 
have its their samples analyzed by another 
certified laboratory during any decertif- 
ication period and supply the State Labo- 
ratory with the name of the certified 
laboratory to be used. 

(f) Civil Penalties. Civil penalties mav be as- 
sessed against a laboratory which violates or fails 
to act in accordance with anv of the terms, con- 



ditions. or requirements of the Rules in this Sec- 
tion or of a laboratory certification. A laboratory 
is subject to both civil penalties and decertif- 
ication. 



Statutory Authority G.S. 143-215.3(a)( 1 ); 

143-215.3(a)(10); 143-21 5.6 A. 

.0808 RFCERTIFICATION 

(a) A laboratory decertified in accordance with 
Rule .0807(a) of this Section because - el failure - 
to maintain sufficient ef adequate facilities, e* 
laboratory supervisor, of records, of e quipmont, 
of quality control program, of failure to pay- f»- 
quired fee* may be recertified after 30- days at the 
end of the decertification period by showing to 
the satisfaction of the State Laboratory 7 that it has 
corrected the deficiency(ies). 

(b) A laboratory decertified for a parameter due 
to unacceptable results on two consecutive per- 
formance evaluation samples submitted by EPA 
or the State Laboratory, or on three two consec- 
utive split samples may be recertified after 60 
days by reporting acceptable results on two con- 
secutive performance evaluation samples similar 
to those foF which approval w&s lost submitted 
bv the State Laboratory. Recertification samples 
may be requested at any time, however, recertif- 
ication must be requested in writing at the end 
of the 60 day period immediately following the 
date of decertification. 

(c) A laboratory decertified for submitting fal- 
sified reports losos certification foF ail parameters 
afi4 shall »ot be considered foF aoy- certification 
fe* a one year p e riod, data or other information 
may be recertified at the end of the decertification 

in a — ■ — _ — — — ■ ■ — 

period by demonstrating compliance with all re- 
quirements of this Section. 



Statutory' Authority G.S. 
143-215.3(a)(10). 



143-215.3(a)(l); 



.0809 RECIPROCITY 

(a) Laboratories certified under other state cer- 
tification programs may be given reciprocity cer- 
tification where such programs meet the 
requirements of those Regulations, this Section. 
In requesting reciprocity certification, laborato- 
ries shall include with the application required 
by Regulation .0805(a) Rule .0805(a) of this 
Section a copy of their certification and Regu- 
lation from the certifying agency. 

(b) Laboratories certified o» the basis of p*o- 
gram equivalency bv reciprocity shall pay the fees 
required by Regulation -0S06 Rule .0806 of this 
Section. 

(c) Anv time that a laboratory has its certif- 
ication with the reciprocal program discontinued 
for anv reason, certification under this Section 
will be terminated at the same time. 



Statutory Authority G.S. 143-215.3(a)(l); 
143-215.3(a)(10). 



653 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



.0810 ADMINISTRATION 

(a) The Director of the Division of Environ- 
mental Management, Department of Environ- 
ment, Health, and Natural Resources, a**4 
Community Dovolopment, or his delegate, is au- 
thorized to issue certification, to reject applica- 
tions for certification, to renew certification, to 
issue recertification, to issue decertification, and 
to issue reciprocity certification. 

(b) Appeals. In any case where the Director 
of the Division of Environmental Management, 
Department of Environment, Health, and Na- 
tural Resources, ae4 Community Dovolopmont 
or his delegate denies certification, or decertifies 
a laboratory, the laboratory may appeal to the 
N.C. Office of Administrative Hearings in ac- 
cordance with Chapter 150B of the General 
Statutes. 

(c) The State Laboratory will maintain a list 
of certified commercial laboratories. The list will 
be reprinted every six months. 

(d) Implementation of the November, 1992 
changes to this Section. 

(1) All requirements of the Rules in this Sec- 
tion are effective on the effective date of 
the amendments. 

Requests for the new parameters may be 
made by submitting a properly completed 
application form. 

Excluding Class I and II wastewater 
treatment plant laboratories not currently 
certified, laboratories subject to the 
amended requirements of these Rules 
must submit a completed application 
within three months of the effective date 
of the amendments. Laboratories sub- 
mitting an acceptable application for any 
of the newly certifiable parameters may 
analyze samples for these new parameters 
until the State I .aboratorv has issued or 
denied certification. 



No 



£21 



01 



(11 



Class I and H wastewater treatment plant 
laboratories not currently certified must 
submit an application by July _L 1995, or 
as requested by the State laboratory. 
After submitting an acceptable applica- 
tion, these laboratories may continue to 
analyze samples until the State Labora- 
torv has issued or denied certification. 



Statutory Authority G.S. 1 43-21 5. 3(a) ( I ); 
143-2l5.3(a)(10); 150B-23. 

****************** 



' otice is hereby given in accordance with G.S. 
150B-2I.2 that the EHNR - Division of Environ- 
mental Management intends to amend rule(s) 
cited as 15 A NCAC 2M .0201. 

1 he proposed effective date of this action is No- 
vember 2, 1992. 

1 nstructions on how to demand a public hearing 
(must be requested in writing within 15 days of 
notice): Any person(s) requesting a public hear- 
ing on the proposed rule must submit such a re- 
quest in writing within 15 days after publication 
of the notice. The request must be submitted to 
Mrs. Vega M. George, Division of Environmental 
Management, P.O. Box 29535, Raleigh, NC 
27626-0535. M ailed written requests must be re- 
ceived by July 16, 1992. 

I\eason for Proposed Action: To permit the 
commitment of loan funds through the Federally 
seeded State Revolving Fund program to finance 
wastewater collection sewers. 



Co 



■ omment Procedures: Interested persons de- 
siring to make written comments concerning this 
Rule should send their typewritten statement to 
Mrs. Vega M. George, Division of Environmental 
Management. P.O. Box 29535, Raleigh, NC 
27626-0535. Mailed written comments must be 
received by July 31, 1992. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SLBCHAPTER 2M - NORTH CAROLINA 

WATER POLLLTION CONTROL REVOLVING 

FLND 

SECTION .0200 - APPLICABLE ACTIVITIES 

.0201 LOAN ACTIVITIES 

(a) Loans shall be available for the construction 
of publicly owned wastewater treatment works 
that appear on the state's priority list and as they 
are defined in Section 2 1 2 of the Federal Clean 
Water Act. exoopt fof wastewater collection 
sewers. 

(b) Loans may be available for implementation 
of a non-point source pollution control manage- 
ment program under Section 319 of the Federal 
Clean Water Act; and 

(c) Loans may be available for development 
and implementation of an estuary conservation 
and management plan under Section 320 of the 
Federal Clean Water Act. 



7:7 NORTH CAROLINA REGISTER July I, 1992 



654 



PROPOSED RULES 



Statutory Authority G.S. 159G-5(c); 159G-15. 
****************** 

i V otice is hereby given in accordance with G.S. 
150B-2L2 that the EHNR - Coastal Management 
intends to amend rule(s) cited as ISA NCAC 7H 
.0305, .0308, .0310. 

1 he proposed effective date of this action is De- 
cember 1, 1992. 

1 he public hearing will be conducted at 4:00 
p.m. on July 23, 1992 at the Crystal Coast Civic 
Center, 3505 Arendell Street, Morehead City, 
N.C. 



R 



easons for Proposed Actions: 



15A NCAC 7H .0305 - Amendments to this Rule 
consist of amending the definition of "frontal 
dune" by eliminating a restriction on man-made 
dunes and a reference to the primary dune. 

ISA NCAC 7H .0308, .0310 - Amendments to these 
Rules are to clarify development guidelines for the 
Ocean Hazard System Area of Environmental 
Concern. 

Comment Procedures: All persons interested in 
this matter are invited to attend the public hearing. 
The Coastal Resources Commission will receive 
mailed written comments postmarked no later 
than July 31, 1992. Any person desiring to present 
lengthy comments is requested to submit a written 
statement for inclusion in the record of pro- 
ceedings at the public hearing. Additional infor- 
mation concerning the hearing or the proposals 
may be obtained by contacting Dedra Blackwell, 
Division of Coastal Management, P.O. Box 
27687, Raleigh, NC 27611-7687, (919) 733-2293. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7H - STATE GLIDELINES FOR 
AREAS OF ENVIRONMENTAL CONCERN 

SECTION .0300 - OCEAN HAZARD AREAS 

.0305 GENERAL IDENTIFICATION AND 
DESCRIPTION OF LANDFORMS 

(a) Ocean Beaches. Ocean beaches are lands 
consisting of unconsolidated soil materials that 
extend from the mean low water line landward 
to a point where either: 

(1) the growth of vegetation occurs, or 



(2) a distinct change in slope or elevation al- 
ters the configuration of the landform, 
whichever is farther landward. 

(b) Primary Dunes. Primary dunes are the first 
mounds of sand located landward of the ocean 
beaches having an elevation equal to the mean 
flood level (in a storm having a one percent 
chance of being equalled or exceeded in any given 
year) for the area plus six feet. The primary dune 
extends landward to the lowest elevation in the 
depression behind that same mound of sand 
(commonly referred to as the dune trough). 

(c) Frontal Dunes. I» ar e as where thoro is a 
primary dune, that- duno ohall be doomod t» be 
the frontal duno. Whoro thoro is He primary 
dun e , the The frontal dune is deemed to be the 
first mound of sand located landward of the 
ocean beach having sufficient vegetation, height, 
continuity and configuration to offer protective 
value. Man made mounds soaward ef the ea- 

tTiTTH ^H^^ ^^T IITTrT^^a JJtlT IT. .7 1*1 " vJ CTTTTT^^? *_■'! VTTTT-TJ CTT^^T 

liinri 1 TTjjJJ r- \-t -~i 1 1 n/\t Vt .^ nnnnrl.imiH * J"t Q^ T t-i-i ntnl 

J U11U Ty I J l ..' JIIU-TT 1 l\J I C^P DUnOIQ UI VTJ CTT Uf UUlll 111 

ef primary dunoo. 

(d) General Identification. For the purpose 
of public and administrative notice and conven- 
ience, each designated minor development 
permit-letting agency with ocean hazard areas 
may designate, subject to CRC approval, a read- 
ily identifiable land area within which the ocean 
hazard areas occur. This designated notice area 
must include all of the land areas defined in .0304 
of this Section. Natural or man-made landmarks 
should be considered in delineating this area. 

(e) "Vegetation Line" means the first line of 
stable natural vegetation, which shall be used as 
the reference point for measuring oceanfront set- 
backs. This line represents the boundary be- 
tween the normal dry-sand beach, which is 
subject to constant flux due to waves, tides, 
storms and wind, and the more stable upland 
areas. It is generally located at or immediately 
oceanward of the seaward toe of the frontal dune 
and/or erosion escarpment. In areas where there 
is no stable natural vegetation present, this line 
shall be established by connecting or extending 
the lines from the nearest adjacent vegetation on 
either side of the site and by extrapolating (by 
either on-ground observation or by aenal photo- 
graphic interpretation) to establish the line. 

(f) "Erosion Escarpment" means normal verti- 
cal drop in the beach profile caused from high 
tide and/or storm tide erosion. 

(g) Measurement line means the line from 
which the ocean front setback as described in 
.0306(a) of this Subchapter is measured in the 
unvegetated beach area of environmental concern 
as described in .0304(a)(4) of this Subchapter. 
Procedures for determining the measurement line 



655 



7:7 NORTH CAROLINA REGISTER July I, 1992 



PROPOSED RULES 



shall be adopted by the Commission for each 
area where such a line is designated. These pro- 
cedures shall be available from any local permit 
officer or the Division of Coastal Management. 



Statutory Authority G.S. 
113A-1 13(b)(6); I13A-124. 



11 '3 A- 107; 



.0308 SPECIFIC USE STANDARDS FOR 
OCEAN HAZARD AREAS 

(a) Ocean Shoreline Erosion Control Activities: 
(1) Use Standards Applicable to all Erosion 
Control Activities: 

(A) Preferred erosion control measures shall 
be beach nourishment projects and relo- 
cation. Alternative approaches will be 
allowed where the applicant can show that 
such measures are necessary to provide 
adequate protection. Comprehensive 
shoreline management shall be preferred 
over small scale methods. 

(B) Erosion control structures which cause 
significant adverse impacts on the value 
and enjoyment of adjacent properties or 
public access to and use of the ocean 
beach are prohibited. Such structures in- 
clude, but are not limited to, wooden 
bulkheads, seawalls, rock or rubble 
revetments, wooden, metal, concrete or 
rock jetties, groins and breakwaters; 
concrete-filled sandbags and tire struc- 
tures. 

(C) Rules concerning the use of oceanfront 
erosion control measures apply to all 
oceanfront properties without regard to 
the size of the structure on the property 
or the date of its construction. 

(D) Erosion control measures which will 
interfere with public access to and use of 
the ocean beaches are prohibited. 

fE) Erosion control m e asur e s which r . ignif 
icantly increase erosion eft adjacent prop 
e rtioo ate prohibited. 

(E) fE} All oceanfront erosion control ac- 
tivities, other than beach bulldozing, 
placement of sandbag structures or artifi- 
cial seaweed shall demonstrate sound en- 
gineering for their planned purpose and 
shall be certified by a licensed engineer 
prior to being permitted. 

(F) (G) Shoreline erosion control projects 
shall not be constructed in beach or 
estuarine areas that sustain substantial 
habitat for important wildlife species un- 
less adequate mitigation measures are in- 
corporated into project design, as set forth 
in Rule .0306(i) of this Section. 



(G) fH} Project construction shall be timed 
to have minimum significant adverse ef- 
fect on biological activity. 
(H) (I) The applicant shall notify all littoral 
property owners within 100' of the 
boundaries of the project site and no per- 
mit shall be issued until the property 
owner(s) has signed the notice form or 
until a reasonable effort has been made to 
serve notice on the owner(s) by registered 
or certified mail. 
(1) (J) All oceanfront erosion control 
projects shall be consistent with the gen- 
eral policy statements in 15A NCAC 7M 
.0200. 
(J) f+r) Prior to beginning any beach 
nourishment or structural erosion control 
project, all exposed remnants of or debris 
from failed erosion control structures 
must be removed by the permittee. 
(K) ft*) All permitted erosion control de- 
vices shall be marked so as to allow iden- 
tification for monitoring and potential 
cleanup purposes. 
(L) {M} Erosion control structures that 
would otherwise be prohibited by these 
standards may be permitted on finding 
that: 

(i) the erosion control structure is neces- 
sary to protect a bridge which provides 
the only existing road access to a sub- 
stantial population on a barrier island; 
that is vital to public safety; and is 
imminently threatened by erosion; 
(ii) the preferred erosion control meas- 
ures of relocation, beach nourishment 
or temporary stabilization are not ade- 
quate to protect public health and 
safety; and 
(iii) the proposed erosion control meas- 
ure will have no adverse impacts on 
adjacent properties in private ownership 
and will have minimal impacts on pub- 
lic use of the beach. 
(2) Temporary Erosion Control Structures 

(A) Permittable temporary erosion control 
structures include only the following: 

(i) Bulkheads or similar structures made 
of sandbags or comparable materials; 

(ii) Low sandbag groins or sandbag 
sediment trapping structures above 
mean high water provided they are 
continuously buried by suitable sand 
from an outside source. 

(B) Temporary erosion control structures 
as denned in (A) of this Paragraph may 
be used only to protect imminently 
threatened structures. Normally, a struc- 



7:7 NORTH CAROLINA REGISTER July I, 1992 



656 



PROPOSED RULES 



ture will be considered to be imminently 
threatened if its foundation is less than 20 
feet away from the erosion scarp. 

(C) Shore-parallel temporary erosion con- 
trol structures must not extend more than 
20 feet past the end of the structure to be 
protected. The erosion control structure 
also must not come closer than 15 feet to 
the applicant's side property lines unless 
the application is part of a joint project 
with neighbors trying to protect similarly 
threatened structures or unless the appli- 
cant has written permission from the af- 
fected property owner. The landward side 
of such temporary erosion control struc- 
tures shall not be located more than 20 
feet seaward of the property to be pro- 
tected. 

(D) If a temporary erosion control structure 
interferes with public access and use of the 
ocean beach, or if it requires burial but 
remains continuously exposed for more 
than six months it must be removed by 
the permittee within 30 days of notifica- 
tion by the Coastal Resources Commis- 
sion or its representatives. In addition, 
the permittee shall be responsible for the 
removal of remnants of all or portions of 
the temporary erosion control structure 
damaged by storms or continued erosion. 

(E) Once the temporary erosion control 
structure is determined to be unnecessary 
due to a natural reversal of the eroding 
condition, relocation of the threatened 
structure, or adoption of an alternate ero- 
sion control method, any remnants of the 
temporary erosion control structure ex- 
posed seaward of or on the beach must 
be removed by the permittee within 30 
days of notification by the Coastal Re- 
sources Commission or its representatives. 

(F) Temporary sandbag bulkheads 
permittable by this Rule shall be of a size 
and configuration consistent with their al- 
lowed purpose. Such structures may be 
appropriately anchored and shah not ex- 
ceed a width at their base of three 
sandbags or a maximum of fifteen feet. 
In no case shall the structure extend below 
the mean high water line. 

(3) Sand-Trapping Devices: Low intensity 
off-shore passive sand-trapping devices 
may be permitted provided: 
(A) A minimum of two signs no smaller 
than 12 inches x 18 inches will be placed 
and maintained on poles on the ocean 
beach at least 6' above ground level that 
will indicate to fishermen, surfers and 



bathers that the structures or devices are 
present offshore. 

(B) The structures or devices will be re- 
moved at the expense of the applicant 
should they be documented as a nuisance 
to private property or to the public well 
being. "Nuisance" will be defmed as any 
interference with reasonable use of public 
trust waters or the ocean beaches for nav- 
igation, swimming, fishing, sunbathing, 
or other recreational uses. 

(C) The structures or devices will be aligned 
no closer than 450 feet seaward of the first 
line of stable natural vegetation or 300 feet 
from the mean high water line, whichever 
is further seaward. 

(4) Beach Nourishment. Sand used for beach 
nourishment should be compatible with 
existing grain size and type. Sand to be 
used for beach nourishment shall be taken 
only from those areas where the resulting 
environmental impacts will be minimal. 

(5) Beach Bulldozing. Beach bulldozing (de- 
fined as the process of moving natural 
beach material from any point seaward of 
the first line of stable vegetation to create 
a protective sand dike or to obtain mate- 
rial for any other purpose) is development 
and may be permitted as an erosion con- 
trol measure if the following conditions 
are met: 

(A) The area on which this activity is being 
performed must maintain a slope of ade- 
quate grade so as to not endanger the 
public or the public's use of the beach and 
should follow the pre-emergency slope as 
closely as possible. The movement of 
material utilizing a bulldozer, front end 
loader, backhoe, scraper, or any type of 
earth moving or construction equipment 
should not exceed one foot in depth 
measured from the pre-activity surface el- 
evation; 

(B) The activity must not exceed the lateral 
bounds of the applicant's property unless 
he has permission of the adjoining land 
owner(s); 

(C) Movement of material from seaward 
of the low water line will require a CAMA 
Major Development and State Dredge 
and Fill Permit; 

(D) The activity must not significantly in- 
crease erosion on neighboring properties 
and must not have a significant adverse 
effect on important natural or cultural re- 
sources; 

(E) The activity may be undertaken to 
protect threatened on-site waste disposal 



65 ~ 



7:7 NORTH CAROLINA REGISTER July I, 1992 



PROPOSED RULES 



systems as well as the threatened struc- 
ture's foundations, 
(b) Dune Establishment and Stabilization. 
Activities to establish dunes shall be allowed so 
long as the following conditions are met: 

(1) Any new dunes established shall be aligned 
to the greatest extent possible with exist- 
ing adjacent dune ridges and shall be of 
the same general configuration as adjacent 
natural dunes. 

(2) Existing primary and frontal dunes shall 
not, except for beach nourishment and 
emergency situations, be broadened or 
extended in an oceanward direction. 

(3) Adding to dunes shall be accomplished in 
such a manner that the damage to existing 
vegetation is minimized. The filled areas 
will be immediately replanted or tempo- 
rarily stabilized until planting can be suc- 
cessfully completed. 

(4) Sand used to establish or strengthen dunes 
must be brought » from a source outsid e 
the ocoan hazard area a»4 must be e£ the 

.. 1 1 1 1 I l\J I IU I "J- 1 \- IX J I 1 IV LTUJ 1U L1I 1 1 X\J Ui \.TJ II 1 

which k- is te- be placed, of the same 
general characteristics as the sand in the 
area in which it is to be placed. 

(5) No new dunes shall be created in inlet 
hazard areas. 

\ \j j x. i iui _hji iu iiLiu u i jil'iu n. 1 err u_i it \j nn uini.1 

than frontal &f primary duneo may- be 
moved laterally » order te- strengthen e*- 

^^^^j^^^ f^^^^T: ^^C j ' i \ f 'i t ■ i 1 j 1 I ) il , ti i I ^^^^a ^^^^^-^^ 

um rsr pTTCTmrT rr 1 1 v .' i i i ui u lxi h. j it ii iv tt^ttxc 

would enhance the protection te- the pro 
posed development activity. Sand held in 
storage in any dune, other than the frontal 
or primary dune, may be redistributed 
within the AEC provided that it is not 
placed any farther oceanward than the 
crest of a pnmarv dune or landward toe 
of a frontal dune. 
(7) No disturbance of a dune area will be al- 
lowed when other techniques of con- 
struction can be utilized and alternative 
site locations exist to avoid unnecessary 
dune impacts, 
(c) Structural Accessways 

(1) Structural accessways shall be permitted 
across primary dunes so long as they are 
designed and constructed in a manner 
which entails negligible alteration on the 
primary dune. Structural accessways may 
not be considered threatened structures 
for the purpose of Paragraph (a) of this 
Rule. 

(2) An accessway shall be conclusively pre- 
sumed to entail negligible alteration of a 
primary dune if: 



(A) The accessway is exclusively for pedes- 
trian use; 

(B) The accessway is less than six feet in 
width; and 

(C) The accessway is raised on posts or 
pilings of five feet or less depth, so that 
wherever possible only the posts or pilings 
touch the frontal dune. Where this is 
deemed impossible, the structure shall 
touch the dune only to the extent abso- 
lutely necessary. In no case shall an 
accessway be permitted if it will diminish 
the dune's capacity as a protective barrier 
against flooding and erosion; and 

(D) Any areas of vegetation that are dis- 
turbed are re vegetated as soon as feasible. 

(3) An accessway which does not meet (2)(A) 
and (B) of this Paragraph shall be per- 
mitted only if it meets a public purpose 
or need which cannot otherwise be met 
and it meets (2)(C) of this Paragraph. 
Public fishing piers shall not be deemed 
to be prohibited by this Rule, provided 
all other applicable standards are met. 

(4) In order to avoid weakening the protective 
nature of primary and frontal dunes a 
structural accessway (such as a "Hatteras 
ramp") should be provided for any off- 
road vehicle (ORV) or emergency vehicle 
access. Such accessways should be no 
greater than ten feet in width and should 
be constructed of wooden sections fas- 
tened together over the length of the af- 
fected dune area. 

(d) Construction Standards. New construction 
and substantial improvements (increases of 50 
percent or more in value on square footage) to 
existing construction shall comply with the fol- 
lowing standards: 

(1) In order to avoid unreasonable danger to 
life and property, all development shall be 
designed and placed so as to miriirnize 
damage due to fluctuations in ground ele- 
vation and wave action in a 100 year 
storm. Any building constructed within 
the ocean hazard area shall comply with 
the North Carolina Building Code in- 
cluding the Coastal and Flood Plain 
Construction Standards, Chapter 34, Vol- 
ume 1 or Section 39, Volume 1-B and the 
local flood damage prevention ordinance 
as required by the National Flood Insur- 
ance Program. If any provision of the 
building code or a flood damage pre- 
vention ordinance is inconsistent with any 
of the following AEC standards, the more 
restrictive provision shall control. 



7:7 NORTH CAROLINA REGISTER July I, 1992 



658 



PROPOSED RULES 



(2) All structures in the ocean hazard area 
shall be on pilings not less than eight 
inches in diameter if round or eight inches 
to a side if square. 

(3) All pilings shall have a tip penetration 
greater than eight feet below the lowest 
ground elevation under the structure. For 
those structures so located on the primary 
dune or nearer to the ocean, the pilings 
must extend to five feet below mean sea 
level. 

(4) All foundations shall be adequately de- 
signed to be stable during applicable fluc- 
tuations in ground elevation and wave 
forces during a 100 year storm. 
Cantilevered decks and walkways shall 
meet this standard or shall be designed to 
break-away without structural damage to 
the main structure. 



Statutory A uthority 

H3A-107(b); 

1 13 A- 1 24. 



G.S. I13A-I07(a); 
113A-113(b)(6)a.,b.,d.; 



.0310 USE STANDARDS FOR INLET 
HAZARD AREAS 

(a) Inlet areas as defined by Rule .0304 of this 
Section are subject to inlet migration, rapid and 
severe changes in watercourses, flooding and 
strong tides. Due to this extremely hazardous 
nature of the inlet hazard areas, all development 
within these areas shall be located in accordance 
with the following standards: 

(1) All development in the inlet hazard area 
shall be set back from the first line of sta- 
ble natural vegetation a distance equal to 
the setback required in the adjacent ocean 
hazard area; 

(2) Permanent structures shall be permitted 
at a density of no more than one com- 
mercial or residential unit per 15,000 
square feet of land area on lots subdivided 
or created after July 23, 1981; 

(3) Only residential structures of four units 
or less or non-residential structures of less 
than 5,000 square feet total floor area shall 
be allowed within the inlet hazard area; 

(4) Established common-law and statutory 
public rights of access to the public trust 
lands and waters in inlet hazard areas shall 
not be eliminated or restricted. Develop- 
ment shall not encroach upon public 
accessways nor shall it limit the intended 
use of the accessways; 

(4} Shoreline stabilization structures shall b<* 
permitted only as a part ef a publicly 
supported proj e ct; 



(5) (4) All other rules in this Subchapter per- 
taining to development in the ocean haz- 
ard areas shall be applied to development 
within the inlet hazard areas; 
(b) The types of development exempted from 
the ocean setback rules in Rule .0309(a) of this 
Section shall also be exempt from these inlet 
hazard area setback requirements. 



Statutory Authority 

1I3A-I13(b); 113A-I24. 



G.S. 



113A-107; 



****************** 



iV otice is hereby given in accordance with G.S. 
150B-21 .2 that the EHNR - Commission for 
Health Services intends to amend rule(s) cited as 
ISA NCAC 13A .0001, .0009 - .0010; 13B .1204; 
ISA .1016; 18C .1507, .1607, .1614; 25 .0213; 
repeal rule(s) cited as 21C .0201 - .0207. 

1 he proposed effective date of this action is Oc- 
tober 1, 1992. 

1 he public hearing will be conducted at 1:30 
p.m. on July 22, 1992 at the Archives and History 
Bldg., (First Floor Auditorium), 109 E. Jones St., 
Raleigh, N.C. 



R 



easons for Proposed Actions: 



15A NCAC 13A .0001 - To comply with G.S. 150B 
regarding publication costs and mailing list fees. 

15A NCAC I3A .0009 - .0010 - These amendments 
add new requirements for owners and operators 
of hazardous waste surface impoundments, waste 
piles, and landfills to install and operate leak de- 
lection systems at such time as these units are 
added, laterally expanded, or replaced. Most of 
these Rules are in response to the requirements of 
the 1984 Hazardous and Solid Waste Amend- 
ments (HSWA) to RCRA. 

ISA NCAC 13B .1204 - This amendment is pursu- 
ant to a rule-making petition. 

ISA NCAC 18A .1016 - 7o clarify requirements for 
existing dormitories and new construction in sum- 
mer camps; and to lower the amount of floor 
space for a child. 

ISA NCAC I8C .1507 - These amendments are 
needed to revise the rule title and to meet the 
federal primacy requirements to implement 40 



659 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



CFR 141.80 through 141.91, which are the new 
lead and copper control regulations. 

I5A NCAC 18C .1607 - Is proposed for amendment 
to meet the federal primacy requirements for im- 
plementing the lead and copper rules. 

15A NCAC 18C .1614 - Is proposed for amendment 
to meet the federal primacy requirements. 

15A NCAC 21C .020! - .0207 - This is a request to 
repeal "Local Health Department Delivery 
Funds" program rules. These are no longer allo- 
cated to local health departments. An increase in 
Medicaid eligibility to 185 percent of the federal 
poverty level resulted in these funds no longer be- 
ing necessary to provide delivery services to non- 
Medicaid eligible women. The percentage of 
non-Medicaid eligible women receiving obstetrical 
services remains small. 

15A NCAC 25 .0213 - This amendment is to set the 
mandatory inspection frequency for Bed and 
Breakfast Inns to 1 16 months and to delete un- 
necessary language involving meat markets. 

Comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barklev, Department of Justice, P.O. Box 629, 
Raleigh, NC 27602-0629, (919) 733-46/8. If you 
desire to speak at the public hearing, notify John 
P. Barkley at least three days prior to the public 
hearing. Oral presentation lengths shall be limited 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or address proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORT AST THAT ALL IN- 
TERESTED AMD POTENTIALLY AF- 
FECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS, INSTI- 
TUTIONS. OR AGENCIES MAKE THEIR 
VIEWS AND OPINIONS KNOWN TO THE 
COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL PRO- 
VISIONS OF THE PROPOSED RULES. THE 
COMMISSION MAY MAKE CHANGES TO 
THE RULES AT THE COMMISSION MEET- 



ING IF THE CHANGES COMPLY WITH G.S. 
l50B-21.1(f). 

CHAPTER 13 - SOLID WASTE MANAGEMENT 

SUBCHAPTER 13A - HAZARDOUS WASTE 
MANAGEMENT 

.0001 GENERAL 

(a) The Hazardous Waste Section of the Solid 
Waste Management Division shall administer the 
hazardous waste management program for the 
State of North Carolina. 

(b) In applying the federal requirements incor- 
porated by reference throughout this Subchapter, 
the following substitutions or exceptions shall 
apply: 

( 1 ) " Department of Environment, I lealth, and 
Natural Resources" shall be substituted 
for "Environmental Protection Agency" 
except in 40 CFR 262.51 through 262.54, 
262.56, 262.57 where references to the 
Environmental Protection Agency shall 
remain without substitution; 

(2) "Secretary of the Department of Environ- 
ment, Health, and Natural Resources" 
shall be substituted for "Administrator," 
"Regional Administrator" and "Director" 
except for 40 CFR 262.55 through 262.57, 
264.12(a), 268.5, 268.6, 268.42(b) and 
268.44 where the references to the Ad- 
ministrator, Regional Administrator, and 
Director shall remain without substi- 
tution; and 

(3) An "annual report" shall be required for 
all hazardous waste generators, treaters, 
storers, and disposers rather than a 
"biennial report". 

(c) 40 CFR 260.1 through 260.3 (Subpart A), 
"General," have been adopted incorporated by 
reference m accordance with G.S. 150B 11(c). 
including subsequent amendments and editions. 

(d) 40 CFR 260.11, "References", has been 
adopted incorporated by reference » accordance 
with G.S. 1501? 1 l(o). including subsequent 
amendments and editions. 



(e} Copioo ef a4J mat e rial adopted by reference 
» tk» Subchapt e r may be insp e ct e d m me See- 
riea Office, 444- Oborlin R-ea4r P^, ite>* ¥tt&h 
Raleigh, NC. 2761 1. Copies may be obtained 

tm rt-t tl-i.i V i.'ti.Mi ^ t t Vi g ■ i i ■ t i i ■ i 1 . - r-\ .- 1 t . \ t H .1 S i ' i 111 11 1 
rTTTTTT 1 1 TO rTTTTrTTTT CTT 1 1 l\J CTT7TTTTTT CT_T . *l TTT 1 1 1\J rTCTTrTTTTTTT 

(e) Copies of all materials in this Subchapter 
may be inspected or obtained as follows: 

( 1) Persons interested in receiving rule-making 
notices concerning the North Carolina 
1 la/.ardous Waste Management Rules 
must submit a written request to the 
Hazardous Waste Section. P.O. Box 
27687, Raleigh, N.C. 27611-7687. A 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



660 



PROPOSED RULES 



check in the amount of fifteen dollars 
(SI 5.00) made payable to The Hazardous 
Waste Section must be enclosed with each 
request. Upon receipt of each request, 
individuals will be placed on a mailing list 
to receive notices for one year. 

(2) Material incorporated by reference in the 
Federal Register mav be obtained from 
the Supenntendent of Documents, U.S. 
Government Printing Office, Washington, 
DC. 20402 at a cost of three hundred and 
forty dollars ($340.00) per year. Federal 
Register materials are codified once a year 
in the Code of Federal Regulations and 
may be obtained at the above address for 
a cost of: 40 CFR 1-51 thirty seven dol- 
lars ($37.00). 40 CFR 260-299 forty dol- 
lars ($40.00) and 40 CFR 100-149 forty 
dollars ($40.00), total one hundred and 
seventeen dollars ($117.00). 

(3) Ihe North Carolina Hazardous Waste 
Management Rules, including the incor- 
porated bv reference materials, may be 
obtained from the Hazardous Waste Sec- 
tion at a cost of sixteen dollars ($16.00). 

(4) All matenal is available for inspection at 
the Department of Fnvironment, Health, 
and Natural Resources, Hazardous Waste 
Section, 401 Obcrlin Road, Raleigh, N.C. 

Statutory Authority G.S. 130A-294(c). 

.0009 STANDARDS FOR OWNERS/OPERATORS 
OF HWTSD FACILITIES - PART 264 

(a) Any person who treats, stores or disposes 
of hazardous waste shall comply with the re- 
quirements set forth in this Section. The treat- 
ment, storage or disposal of hazardous waste is 
prohibited except as provided in this Section. 

(b) 40 CFR 264.1 through 264.4 (Subpart A), 
"General", have been adopted incorporated by 
reference m accordance with G.S. 150B M(c). 
including subsequent amendments and additions. 

(c) 40 CFR 264.10 through 264.18 (Subpart 
B), "General Facility Standards", have been 
adopted incorporated by reference » accordance 
with G.S. 150B M(c). including subsequent 
amendments and additions. 



(d) 40 CFR 264.30 through 264.37 (Subpart 
C), "Preparedness and Prevention", have been 
adopted incorporated by reference » accordanc e 
with G-&r 1501? 1 1(c). including subsequent 
amendments and additions. 

(e) 40 CFR 264.50 through 264.56 (Subpart 
D), "Contingency Plan and Emergency Proce- 
dures", have been adopted incorporated by ref- 
erence m accordanc e wftk G-£r 150B M(c). 
including subsequent amendments and additions. 



(f) 40 CFR 264.70 through 264.77 (Subpart 
E), "Manifest System, Recordkeeping, and Re- 
porting", have been adopted incorporated by 
reference » accordanc e witk G.S. 150B U(g). 
including subsequent amendments and additions. 

(g) 40 CFR 264.90 through 264.101 (Subpart 
F), "Releases From Solid Waste Management 
Units", have been adoptod incorporated by ref- 
erence » accordance with G.S. 150B l'l(c). in- 
cluding subsequent amendments and additions. 
For the purpose of this adoption incorporation 
bv reference, "January 26, 1983" shall be substi- 
tuted for "July 26, 1982" contained in 40 CFR 
264.90(a)(2). 

(h) 40 CFR 264.110 through 264.120 (Subpart 
G), "Closure and Post-Closure", have been 
adoptod incorporated by reference m accordance) 
with G.S. 150B 14(c). including subsequent 
amendments and additions. 

(i) 40 CFR 264.140 through 264.151 (Subpart 
H), "Financial Requirements", have been 
adopted incorporated by reference » accordance 
vriik Gt&t 150B 14(c), including subsequent 
amendments and additions, except that 40 CFR 
264.143(a)(3), (a)(4), (a)(5), (a)(6), 40 CFR 
264.145(a)(3), (a)(4), (a)(5), and 40 CFR 
264.151(a)(1), Section 15 are not adopted incor- 
porated by reference. 

(1) Ihe following shall be substituted for the 
provisions of 40 CFR 264.143(a)(3) which 
were not adoptod incorporated by refer- 
ence: 

The owner or operator shall deposit the 
full amount of the closure cost estimate 
at the time the fund is established. Within 
1 year of the effective date of these regu- 
lations, an owner or operator using a clo- 
sure trust fund established prior to the 
effective date of these regulations shall 
deposit an amount into the fund so that 
its value after this deposit at least equals 
the amount of the current closure cost es- 
timate, or shall obtain other financial as- 
surance as specified in this Section. 

(2) The following shall be substituted for the 
provisions of 40 CFR 264.143(a)(6) which 
were not adoptod incorporated by refer- 
ence: 

After the trust fund is established, when- 
ever the current closure cost estimate 
changes, the owner or operator shall 
compare the new estimate with the trus- 
tee's most recent annual valuation ol the 
trust fund. If the value of the fund is less 
than the amount of the new estimate, the 
owner or operator within 60 days after the 
change in the cost estimate, shall either 
deposit an amount into the fund so that 



661 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



its value after this deposit at least equals 
the amount of the current closure cost 
estimate, or obtain other financial assur- 
ance as specified in this section to cover 
the difference. 

(3) The following shall be substituted for the 
provisions of 40 CFR 264.145(a)(3) which 
were not adopted incorporated by refer- 
ence: 

(A) Except as otherwise provided in Para- 
graph (i)(3)(B) of this Section, the owner 
or operator shall deposit the full amount 
of the post-closure cost estimate at the 
time the fund is established. 

(B) If the Department finds that the owner 
or operator of an inactive hazardous waste 
disposal unit cannot provide financial as- 
surance for post-closure through any 
other option (e.g. surety bond, letter of 
credit, or corporate guarantee), a plan for 
annual payments to the trust fund over 
the term of the RCRA post-closure per- 
mit may be established by the Department 
as a permit condition. 

(4) The following additional requirement shall 
apply: 

The trustee shall notify the Department 
of payment to the trust fund, by certified 
mall within ten days following said pay- 
ment to the trust fund. The notice shall 
contain the name of the Grantor, the date 
of payment, the amount of payment, and 
the current value of the trust fund, 
(j) 40 CFR 264.170 through 264.178 (Subpart 
I), "Use and Management of Containers", have 
been adopted incorporated by reference i» ae- 
cordanco wrth G-^vr 13 <> B M(o) 



including sub- 
sequent amendments and additions. 

(k) 40 CFR 264.190 through 264.199 (Subpart 
J), "Tank Systems", have been adopted incorpo- 
rated by reference » accordances with G.S. 
150B 11(c). including subsequent amendments 
and additions. 

(1) The following are requirements for Surface 
Impoundments: 

(1) 40 CFR 264.220 through 264.231 (Subpart 
K), "Surface Impoundments", have been 
adopted incorporated by reference » ac- 
cordance wrth G.S. 150B 14(c). including 
subsequent amendments and additions. 

(2) The following are additional standards for 
surface impoundments: 

(A) The liner system shall consist of at least 
two liners; 

(B) Artificial liners shall be equal to or 
greater than 30 mils in thickness; 

(C) Clayey liners shall be equal to or greater 
than five feet in thickness and have a 



maximum permeability of 1.0 x 10-7 
cm/sec; 

(D) Clayey liner soils shall have the same 
characteristics as described in (r)(4)(B)(ii), 
(iii), (iv), (vi) and (vii) of this Rule; 

(E) A leachate collection system shall be 
constructed between the upper liner and 
the bottom liner; 

(F) A leachate detection system shall be 
constructed below the bottom liner; and 

(G) Surface impoundments shall be con- 
structed in such a manner to prevent 
landsliding, slippage or slumping. 

(m) 40 CFR 264.250 through 264.259 (Subpart 
L), "Waste Piles", have been adopted incorpo- 
rated by reference » accordance) with G.S. 
150B l ' 1(c). including subsequent amendments 
and additions. 

(n 
M) 



40 CFR 264.270 through 264.283 (Subpart 
'Land Treatment", have been adopt e d in- 
corporated by reference m accordanc e with G.S. 
150B 14(c). including subsequent amendments 
and additions. 
(o) 
N) 



40 CFR 264.300 through 264.317 (Subpart 
'Landfills", have been adopted incorporated 
by reference » accordance with- G-£r 150B 1 1(c). 
including subsequent amendments and additions. 
(p) A long-term storage facility shall meet 
groundwater protection, closure and post- 
closure, and financial requirements for disposal 
facilities as specified in Paragraphs (g), (h), and 
(i) of this Rule. 
(q) 40 CFR 264.340 through 264.351 (Subpart 
O), "Incinerators", have been adopt e d incorpo- 
rated by reference m accordance with G.S. 
150B 14(c). including subsequent amendments 
and additions. 

(r) The following are additional location 
standards for facilities: 

(1) In addition to the location standards set 
forth in 15A NCAC 13A .0009(c), the 
Department, in determining whether to 
issue a permit for a hazardous waste 
management facility, shall consider the 
risks posed by the proximity of the facility 
to water table levels, flood plains, water 
supplies, public water supply watersheds, 
mines, natural resources such as wetlands, 
endangered species habitats, parks, forests, 
wilderness areas, and historical sites, and 
population centers and shall consider 
whether provision has been made for ad- 
equate buffer zones. The Department 
shall also consider ground water travel 
time, soil pH, soil cation exchange capac- 
ity, soil composition and permeability, 
slope, climate, local land use, transporta- 
tion factors such as proximity to waste 



7:7 NORTH CAROLINA REGISTER July I, 1992 



662 



PROPOSED RULES 



generators, route, route safety, and 
method of transportation, aesthetic factors 
such as the visibility, appearance, and 
noise level of the facility; potential impact 
on air quality, existence of seismic activity 
and cavernous bedrock. 
(2) The following minimum separation dis- 
tances shall be required of all hazardous 
waste management facilities except that 
existing facilities shall be required to meet 
these minimum separation distances to 
the maximum extent feasible: 

(A) All hazardous waste management facil- 
ities shall be located at least 0.25 miles 
from institutions including but not limited 
to schools, health care facilities and pris- 
ons, unless the owner or operator can 
demonstrate that no unreasonable risks 
shall be posed by the proximity of the fa- 
cility. 

(B) All hazardous waste treatment and 
storage faculties shall comply with the 
following separation distances: all hazard- 
ous waste shall be treated and stored a 
minimum of 50 feet from the property line 
of the facility; except that all hazardous 
waste with ignitable, incompatible or re- 
active characteristics shall be treated and 
stored a minimum of 200 feet from the 
property line of the facility if the area ad- 
jacent to the facility is zoned for any use 
other than industrial or is not zoned. 

(C) All hazardous waste landfills, long-term 
storage faculties, land treatment facilities 
and surface impoundments, shall comply 
with the following separation distances: 
(i) All hazardous waste shall be located 

a minimum of 200 feet from the prop- 
erty line of the facility; 

(ii) Each hazardous waste landfill, long- 
term storage or surface impoundment 
facility shall be constructed so that the 
bottom of the facility is 10 feet or more 
above the historical high ground water 
level. The historical high ground water 
level shall be determined by measuring 
the seasonal high ground water levels 
and predicting the long-term maximum 
high ground water level from published 
data on similar North Carolina 
topographic positions, elevations, 
geology, and climate; and 

(ui) /Ml hazardous waste shall be located 
a minimum of 1,000 feet from the zone 
of influence of any existing off-site 
ground water well used for drinking 
water, and outside the zone of influence 



of any existing or planned on-site 
drinking water well. 
(D) Hazardous waste storage and treatment 
facilities for liquid waste that is classified 
as TC toxic, toxic, or acutely toxic and is 
stored or treated in tanks or containers 
shall not be located: 

(i) in the recharge area of an aquifer 
which is designated as an existing sole 
drinking water source as defmed in the 
Safe Drinking Water Act, Section 
.1424(e) [42 U.S.C. 300h-3(e)| unless an 
adequate secondary containment sys- 
tem is constructed, and after consider- 
ation of applicable factors in (r)(3) of 
this Rule, the owner or operator can 
demonstrate no unreasonable risk to 
public health; 
(ii) within 200 feet of surface water 
impoundments or surface water stream 
with continuous flow as defined by the 
United States Geological Survey; 
(iii) in an area that will allow direct sur- 
face or subsurface discharge to WS-I, 
WS-II or SA waters or a Class III Res- 
ervoir as defined in 4-£ 15A NCAC 2B 
.0200 and 44 NCAC 44» .0702(6); 15A 
NCAC 18C .0102; 
(iv) in an area that will allow direct sur- 
face or subsurface discharge to the 
watershed for a Class I or II Reservoir 
as defined in 44 NCAC 44D 4TO2 (4) 
and f^t 15A NCAC 18C .0102; 
(v) within 200 feet horizontally of a 

100-year floodplain elevation; 
(vi) within 200 feet of a seismically active 

area as defined in (c) of this Rule; and 
(vii) within 200 feet of a mine, cave, or 
cavernous bedrock. 
(3) The Department may require any hazard- 
ous waste management facility to comply 
with greater separation distances or other 
protective measures necessary to avoid 
unreasonable risks posed by the proximity 
of the facility to water table levels, flood 
plains, water supplies, public water supply 
watersheds, mines, natural resources such 
as wetlands, endangered species habitats, 
parks, forests, wilderness areas, and his- 
torical sites, and population centers or to 
provide an adequate buffer zone. The 
Department may also require protective 
measures necessary to avoid unreasonable 
risks posed by the soil pH, soil cation ex- 
change capacity, soil composition and 
permeability, climate, transportation fac- 
tors such as proximity to waste genera- 
tors, route, route safety, and method of 



663 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



transportation, aesthetic factors such as 
the visibility, appearance, and noise level 
of the facility, potential impact on air 
quality, and the existence of seismic ac- 
tivity and cavernous bedrock. In deter- 
mining whether to require greater 
separation distances or other protective 
measures, the Department shall consider 
the following factors: 

(A) All proposed hazardous waste activities 
and procedures to be associated with the 
transfer, storage, treatment or disposal of 
hazardous waste at the facility; 

(B) The type of hazardous waste to be 
treated, stored, or disposed of at the facil- 
ity; 

(C) The volume of waste to be treated, 
stored, or disposed of at the facility; 

(D) Land use issues including the number 
of permanent residents in proximity to the 
facility and their distance from the facility; 

(E) The adequacy of facility design and 
plans for containment and control of 
sudden and non-sudden accidental events 
in combination with adequate off-site 
evacuation of potentially adversely im- 
pacted populations; 

(F) Other land use issues including the 
number of institutional and commercial 
structures such as airports and schools in 
proximity to the facility, their distance 
from the facility, and the particular nature 
of the activities that take place in those 
structures; 

(G) The lateral distance and slope from the 
facility to surface water supplies or to 
watersheds draining directly into surface 
water supplies; 

(H) The vertical distance, and type of soils 
and geologic conditions separating the fa- 
cility from the water table; 

(I) The direction and rate of flow of ground 
water from the sites and the extent and 
reliability of on-site and nearby data con- 
cerning seasonal and long-term 
groundwater level fluctuations; 

(J) Potential air emissions including rate, 
direction of movement, dispersion and 
exposure whether from planned or acci- 
dental, uncontrolled releases; and 

(K) Any other relevant factors. 
(4) The following are additional location 
standards for landfills, long-term storage 
facilities and hazardous waste surface 
impoundments: 

(A) A hazardous waste landfill, long-term 
storage, or a surface impoundment facility 
shall not be located: 



(i) m In the recharge area of an aquifer 
which is an existing sole drinking water 
source; 

(ii) within Within 200 feet of a surface 
water stream with continuous flow as 
defined by the United States Geological 
Survey; 

(iii) m In an area that will allow direct 
surface or subsurface discharge to WS-I, 
WS-II or SA waters or a Class III Res- 
ervoir as defined in 44 15A NCAC 2B 
.0200 and 444 NCAC 444© .0702(6); 15A 
NCAC 18C .0102; 

(iv) » In an area that will allow direct 
surface or subsurface discharge to a 
watershed for a Class I or II Reservoir 
as defined in 444 NCAC 444© .0702(1) 
aft4f4>H 15A NCAC 18C .0102; 

(v) within Within 200 feet horizontally of 
a 100-year flood hazard elevation; 

(vi) within Within 200 feet of a seismically 
active area as defined in (c) of this Rule; 
and 

(vii) within Within 200 feet of a mine, 
cave or cavernous bedrock. 

(B) A hazardous waste landfill or long-term 
storage facility shall be located in highly 
weathered, relatively impermeable clayey 
formations with the following soil charac- 
teristics: 

(i) The depth of the unconsolidated soil 
materials shall be equal to or greater 
than 20 feet; 

(ii) The percentage of fifie grained fine- 
grained soil material shall be equal to 
or greater than 30 percent passing 
through a number 200 sieve; 

(in) Soil liquid limit shall be equal to or 
greater than 30; 

(iv) Soil plasticity index shall be equal to 
or greater than 15; 

(v) Soil compacted hydraulic 

conductivity shall be a maximum of 1.0 
x 10-7 cm/sec; 

(vi) Soil Cation Exchange Capacity shall 
be equal to or greater than 5 millie- 
quivalents per 100 grams; 

(vii) Soil Potential Volume Change Index 
shall be equal to or less than 4; and 

(viii) Soils shall be underlain by a com- 
petent geologic formation having a rock 
quality designation equal to or greater 
than 75 percent unless other geological 
conditions afford adequate protection 
of public health and the environment. 

(C) A hazardous waste landfill or long-term 
storage facility shall be located in areas of 
low to moderate relief to the extent nec- 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



664 



PROPOSED RULES 



essary to prevent landsliding or slippage 
and slumping. The site may be graded to 
comply with this standard. 

(5) All new hazardous waste impoundments 
that close with hazardous waste residues 
left in place shall comply with the stand- 
ards for hazardous waste landfills in (r)(4) 
of this Rule unless the applicant can 
demonstrate that equivalent protection of 
public health and environment is afforded 
by some other standard. 

(6) The owners and operators of all new haz- 

ardous waste management facilities shall 
construct and maintain a minimum of two 
observation wells, one upgradient and one 
downgradient of the proposed facility; and 
shall establish background groundwater 
concentrations and monitor annually for 
all hazardous wastes that the owner or 
operator proposes to store, treat, or dis- 
pose at the facility. 

(7) The owners and operators of all new haz- 
ardous waste facilities shall demonstrate 
that the community has had an opportu- 
nity to participate in the siting process by 
complying with the following: 

(A) The owners and operators shall hold 
at least one public meeting in the county 
m which the facility is to be located to 
inform the community of all hazardous 
waste management activities including but 
not limited to: the hazardous properties 
of the waste to be managed; the type of 
management proposed for the wastes; the 
mass and volume of the wastes; and the 
source of the wastes; and to allow the 
community to identify specific health, 
safety and environmental concerns or 
problems expressed by the community 
related to the hazardous waste activities 
associated with the facility. The owners 
and operators shall provide a public notice 
of this meeting at least 30 days prior to the 
meeting. Public notice shall be docu- 
mented in the facility permit application. 
The owners and operators shall submit as 
part of the permit application a complete 
written transcript of the meeting, all writ- 
ten material submitted that represents 
community concerns, and all other rele- 
vant written material distributed or used 
at the meeting. The written transcript and 
other written material submitted or used 
at the meeting shall be submitted to the 
local public library closest to and in the 
county of the proposed site with a request 
that the information be made available to 
the public. 



(B) For the purposes of this Rule, public 
notice shall include: notification of the 
boards of county commissioners of the 
county where the proposed site is to be 
located and all contiguous counties in 
North Carolina; a legal advertisement 
placed in a newspaper or newspapers 
serving those counties; and provision of a 
news release to at least one newspaper, 
one radio station, and one TV station 
serving these counties. Public notice shall 
include the time, place, and purpose of the 
meetings required by this Rule. 

(C) No less than 30 days after the first 
public meeting transcript is available at 
the local public library, the owners and 
operators shall hold at least one additional 
public meeting in order to attempt to re- 
solve community concerns. The owners 
and operators shall provide public notice 
of this meeting at least 30 days prior to the 
meeting. Public notice shall be docu- 
mented in the facility permit application. 
The owners and operators shall submit as 
part of the permit application a complete 
wntten transcript of the meeting, all writ- 
ten material submitted that represents 
community concerns, and all other rele- 
vant written material distributed or used 
at the meeting. 

(D) The application, written transcripts of 
all public meetings and any additional 
material submitted or used at the 
meetings, and any additions or corrections 
to the application, including any re- 
sponses to notices of deficiencies shall be 
submitted to the local library closest to 
and in the county of the proposed site, 
with a request that the information be 
made available to the public until the 
permit decision is made. 

(E) The Department shall consider unre- 
solved community concerns in the permit 
review process and impose final permit 
conditions based on sound scientific, 
health, safety, and environmental princi- 
ples as authorized by applicable laws or 
rules. 

(s) 40 CFR 264.570 through 264.575 (Subpart 
Wj, "Drip Pads", have been incorporated by 
reference including subsequent amendments and 
editions. 

(t) 40 CFR 264.600 through 264.603 (Subpart 
X), "Miscellaneous Units", have been incorpo- 
rated by reference including subsequent amend- 
ments and editions. 

(u) 40 CFR 264.1030 through 264.1049 (Sub- 
part AA), "Air Emission Standards for Process 



665 



SORTH CAROLIXA REGISTER July I, 1992 



PROPOSED RULES 



Vents", have been incorporated by reference in- 
cluding subsequent amendments and editions. 

(v) 40 CFR 264.1050 through 264.1079 (Sub- 
part BB), "Air Emission Standards for Equip- 
ment Leaks", have been incorporated by 
reference including subsequent amendments and 
editions. 

(w) Appendices to 40 CFR Part 264 have been 
incorporated by reference including subsequent 
amendments and editions. 

Statutory Authority G.S. 130A-294(c). 

.0010 INTERIM STATUS STDS FOR 

OWNERS-OP OF HWTSD FACILITIES 
- PART 265 

(a) 40 CFR 265.1 through 265.4 (Subpart A), 
"General", have been adopted incorporated by 
reference » accordanc e with G.S. 150B M(c). 
including subsequent amendments and additions. 

(b) 40 CFR 265.10 through 265.18 265.19 
(Subpart B), "General Facility Standards", have 
been adopted incorporated by reference » ac- 
cordanc e with G.S. 150B 1 1(c). including sub- 
sequent amendments and additions. 

(c) 40 CFR 265.30 through 265.37 (Subpart 
C), "Preparedness and Prevention", have been 
adopted incorporated by reference » accordance 
with G.S. 150B 11(c). including subsequent 
amendments and additions. 

(d) 40 CFR 265.50 through 265.56 (Subpart 
D), "Contingency Plan and Emergency Proce- 
dures", have been adopted incorporated by ref- 
erence i» accordance with- Gt&t 150B 11(c). 
including subsequent amendments and additions. 

(e) 40 CFR 265.70 through 265.77 (Subpart 
E), "Manifest System, Recordkeeping, and Re- 
porting", have been adopted incorporated by 
reference » accordance with- Grkr 150B 1 1(c). 
including subsequent amendments and additions. 

(f) 40 CFR 265.90 through 265.94 (Subpart 
F), "Ground-Water Monitoring", have been 
adopted incorporated by reference m accordance 
with GtSt 150B M(c). including subsequent 
amendments and additions. 

(g) 40 CFR 265.110 through 265.120 (Subpart 
G), "Closure and Post-Closure", have been 
adopted incorporated by reference i» accordanc e 
with GtSt 1 JOB M(c). including subsequent 
amendments and additions. 

(h) 40 CFR 265.140 through 265.151 (Subpart 
H), "Financial Requirements", have been 
adopted incorporated by reference m accordanc e 
with GtSt 150B 14(c), including subsequent 
amendments and additions, except that 40 CFR 
265.143(a)(3), (a)(4), (a)(5), (a)(6), and 40 CFR 
265.145(a)(3), (a)(4), (a)(5), are not adopted irv 
corporated by reference. 



(1) The following shall be substituted for the 
provisions of 40 CFR 265.143(a)(3) which 
were not adopted incorporated by refer- 
ence: 

The owner or operator shall deposit the 
full amount of the closure cost estimate 
at the time the fund is established. Within 
1 year of the effective date of these regu- 
lations, an owner or operator using a clo- 
sure trust fund established prior to the 
effective date of these regulations shall 
deposit an amount into the fund so that 
its value after this deposit at least equals 
the amount of the current closure cost es- 
timate, or shall obtain other financial as- 
surance as specified in this Section. 

(2) The following shall be substituted for the 
provisions of 40 CFR 265.143(a)(6) which 
were not adopted incorporated by refer- 
ence: 

After the trust fund is established, when- 
ever the current closure cost estimate 
changes, the owner or operator shall 
compare the new estimate with the trus- 
tee's most recent annual valuation of the 
trust fund. If the value of the fund is less 
than the amount of the new estimate, the 
owner or operator within 60 days after the 
change in the cost estimate, shall either 
deposit an amount into the fund so that 
its value after this deposit at least equals 
the amount of the current closure cost es- 
timate, or obtain other financial assurance 
as specified in this Section to cover the 
difference. 

(3) The following shall be substituted for the 
provisions of 40 CFR 265.145(a)(3) which 
were not adopted incorporated by refer- 
ence: 

(A) Except as otherwise provided in Para- 
graph (h)(3)(B) of this Section, the owner 
or operator shall deposit the full amount 
of the post -closure cost estimate at the 
time the fund is established. 

(B) If the Department finds that the owner 
or operator of an inactive hazardous waste 
disposal unit cannot provide financial as- 
surance for post-closure through any 
other option (e.g. surety bond, letter of 
credit, or corporate guarantee), a plan for 
annual payments to the trust fund during 
the interim status period may be estab- 
lished by the Department by use of an 
Administrative Order. 

(i) 40 CFR 265.170 through 265.177 (Subpart 
I), "Use and Management of Containers", have 
been adopted incorporated by reference » ae- 
oordanco with G-rSr 150B 14(c). including sub- 



7:7 NORTH CAROLINA REGISTER July I, 1992 



666 



PROPOSED RULES 



sequent 



amendments 



and 



additions. 



Additionally, the owner or operator shall keep 
records and results of required inspections for at 
least three years from the date of the inspection. 
(j) 40 CFR 265.190 through 265.201 (Subpart 
J), "Tank Systems", have been adopted incorpo- 
rated by reference m accordance wrth GrSr 
15UB 1 l(c i . including subsequent amendments 
and additions. 



(k) 40 CFR 265.220 through 265.230 (Subpart 
K). '"Surface Impoundments'', have been 
adopted incorporated by reference » accordance 
with Gt^t 150B 1 1(c). including subsequent 
amendments and additions. 

(1) 40 CFR 265.250 through 265.258 265.260 
(Subpart L), "Waste Piles", have been adopted 
incorporated by reference » accordance with 
G.S. 1 SOB 1 1(c). including subsequent amend- 
ments and additions. 



(m) 40 CFR 265.270 through 265.282 (Subpart 
M), ''Land Treatment", have been adopted in- 
corporated by reference » accordance with G.S. 
15uB 1 lie), including subsequent amendments 
and additions. 



(n) 40 CFR 265.300 through 265.316 (Subpart 
N), "Landfills", have been adopted incorporated 
by reference m accordance wrih Q»r 150B 14(c). 
including subsequent amendments and additions. 

(o) 40 CFR 265.340 through 265.352 (Subpart 
O), "Incinerators", have been adopted incorpo- 
rated by reference » accordance with G.S. 
150B 1 1(c). including subsequent amendments 
and additions. 



(p) 40 CFR 265.370 through 265.383 (Subpart 
P). "Thermal Treatment", have been adopted 
incorporated by reference » accordanc e with 
G.S. 150B M(c). including subsequent amend- 
ments and additions. 



(qi 40 CFR 265.400 through 265.406 (Subpart 
Q). "Chemical, Physical, and Biological Treat- 
ment", have been adopted incorporated by refer- 
ence » accordance with G-£r 150B M(o). 
including subsequent amendments and additions. 

(r) 40 CFR 265.440 through 265.445 (Subpart 
W), "Drip Pads", have been incorporated by 
reference including subsequent amendments and 
editions. 

(s) 40 CFR 265.1030 through 265.1049 (Sub- 
part AA), "Air Emission Standards for Process 
Vents", have been incorporated by reference in- 
cluding subsequent amendments and editions. 

(t) 40 CFR 265.1050 through 265.1079 (Sub- 
part BB). "Air Emission Standards for Equip- 
ment Leaks" have been incorporated by reference 
including subsequent amendments and editions. 

(u) Appendices to 40 CFR Part 265 have been 
incorporated by reference including subsequent 
amendments and editions. 



Statutory Authority G.S. l30A-294(c). 

SUBCHAPTER 13B -SOLID WASTE 
MANAGEMENT 

SECTION .1200 - MEDICAL WASTE 
MANAGEMENT 

.1204 REQUIREMENTS FOR GENERATORS 
OF REGULATED MEDICAL WASTE 

(a) A person who ships Regulated medical 
waste from the generating facility for off-site 
treatment shall meet the following requirements: 

(1) Regulated medical waste shall be packaged 
in a minimum of one plastic bag placed 
in a rigid fiberboard box, ef drum or other 
rigid container in a manner that prevents 
leakage of the contents. The plastic bag 
shall be impervious to moisture and have 
a strength sufficient to preclude ripping, 
tearing or bursting the waste-filled bag 
under normal conditions of usage and 
handling. Each bag shall be constructed 
of material of sufficient single thickness 
strength to pass the 165-gram dropped 
dart impact resistance test as prescribed 
by Standard D 1709-91 of the American 
Society for Testing and Materials, which 
is incorporated by reference including 
subsequent amendments and editions, and 
certified by the bag manufacturer. A copy 
is available for inspection at the Depart- 
ment of Environment, Health, and Na- 
tural Resources, Division of Solid Waste 
Management, 401 Oberlin Road, Raleigh, 
North Carolina. Copies may be requested 
by mail at American Society for Testing 
and Materials, 1916 Race Street, 
Philadelphia, PA. 19103 or by calling 
(215) 299-5400 for a cost of twelve dollars 
($12.00) plus one dollar and fifty cents 
($1.50) for shipping and handling unless 
prepaid, then the fee is twelve dollars 
($12.00). 

(2) Regulated medical waste shall be stored in 
a manner that maintains the integrity of 
the packaging at all times. 

(3) Each package of Regulated medical waste 
shall be labeled with a water-resistant 
universal biohazard symbol. 

(4) Each package of Regulated medical waste 
shall be marked on the outer surface with 
the following information: 

(A) the generator's name, address, and 
telephone number: 

(B) the transporter's name, address, and 
telephone number; 



66~ 



7:7 NORTH CAROLINA REGISTER July I, 1992 



PROPOSED RULES 



(C) storage facility name, address, and tele- 
phone number, when applicable; 

(D) treatment facility name, address and 
telephone number; 

(E) date of shipment; and 

(F) "INFECTIOUS WASTE" or "MED- 
ICAL WASTE". 

(b) Records of Regulated medical waste shall 
be maintained for each shipment and shall in- 
clude the information listed in this Paragraph. 
This information shall be maintained at the gen- 
erating facility for no less than three years. This 
requirement shall not apply to persons who gen- 
erate less than 50 pounds of Regulated medical 
waste per month. 

(1) amount of waste by number of packages 
(piece count); 

(2) date shipped off-site; 

(3) name of transporter; 

(4) name of storage or treatment facility. 

(c) A plan to ensure proper management of 
Regulated medical waste shall be prepared and 
maintained at the generating facility. 

Statutory Authority G.S. 130A-309.26. 

CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A - SANITATION 

SECTION .1000 - SANITATION OF SUMMER 
CAMPS 

.1016 LODGING FACILITIES 

Sleeping quarters may be of various types de- 
pending upon the nature of the camp program 
or the state of development of the physical plant, 
including dormitory-type buildings, rustic cabins, 
tents on platforms, "covered wagons", eter or 
other similar sleeping quarters. Permanent 
dormitory-type sleeping quarters shall provide 
cross ventilation, at least 30 inches between beds, 
40 squar e fort p<*f parson, a minimum of six feet 
between heads of sleepers and an adequate num- 
ber of sleeping units. New construction of per- 
manent dormitory-type sleeping quarters shall 
provide 30 square feet of floor space per person. 
Reconstruction or remodeling that does not in- 
crease the number of children housed, shall not 
be considered new construction. Lodging facili- 
ties, whether provided by the camp or by indi- 
vidual campers, shall be kept clean and in good 
repair. Clean linen and soiled linen shall be 
stored and handled separately and in a sanitary 
manner. 

Statutory Authority G.S. I30A-248. 

SUBCHAPTER 18C - WATER SUPPLIES 



SECTION .1500 - WATER QUALITY 
STANDARDS 

.1507 CORROSION CONTROL AND LEAD 
AND COPPER MONITORING 

(a) Control and adjustment of pH shall be 
provided for community water systems having 
water with a pH below 6.5; such control and ad- 
justment to be approved by the Department. 
Most waters are corrosive in varying degrees at 
pH 6.5 and slightly above and such waters should 
have pi I adjustment. 

(b) Suppliers of water for community water 
systems shall collect samples from a represen- 
tative entry point to the water distribution system 
for the purpose of analysis to determine the 
corrosivity characteristics of the water: 

(1) The supplier shall collect two samples per 
plant for analysis for each plant using 
surface water sources wholly or in part or 
more if required by the Department, one 
during mid-winter and one during mid- 
summer. The supplier of water shall col- 
lect one sample per plant for analysis for 
each plant using ground water sources or 
more if required by the Department. The 
minimum number of samples required to 
be taken by the system shall be based on 
the number of treatment plants used by 
the system, except that multiple wells 
drawing raw water from a single aquifer 
may, with Department approval, be con- 
sidered one treatment plant for determin- 
ing the minimum number of samples. 

(2) Determination of the corrosivity charac- 
teristics of the water shall include meas- 
urement of pH, calcium hardness, 
alkalinity, temperature, total dissolved 
solids (total filterable residue), and calcu- 
lation of the Langelier Index in accord- 
ance with Paragraph (d). The 
determination of corrosivity characteristics 
shall only include one round of sampling 
(two samples per plant for surface water 
and one sample per plant for ground wa- 
ter sources). However, the Department 
may require more frequent monitoring as 
appropriate, and may require monitoring 
for additional parameters which indicate 
corrosivity characteristics, such as sulfates 
and chlorides. In certain cases, the Ag- 
gressive Index, as described in Paragraph 
(d), can be used instead of the Langelier 
Index; the supplier shall request in writing 
to the Department which will make this 
determination. 

(c) The supplier of water shall report to the 
Department the results of the analyses for the 



7:7 NORTH CAROLINA REGISTER July I, 1992 



668 



PROPOSED RULES 



corrosivity characteristics within the first 10 days 
of the month following the month in which the 
sample results were received. If more frequent 
sampling is required by the Department, the 
supplier can accumulate the data and shall report 
each value within 10 days of the month following 
the month in which the analytical results of the 
last sample was received. 

(d) Analyses conducted to determine compli- 
ance with Paragraphs (a) and (b) of this Rule 
shall be made in accordance with methods 
adopted by the United States Environmental 
Protection Agency and codified as 40 C.F.R. 
141.42(c)(1) through (9) which are hereby 
adopted by reference a* amended through March 
4-3t W%3n A hst ©f these methods is available 
from the Public Water Supply Section, Division 
ef Environmental Health, RtOt 8e* 29536, 
Raleigh. North Carolina 27626 0536. incorpo- 
rated bv reference including any subsequent 
amendments and editions. This material is 
available for inspection at the Department of 
Environment, Health, and Natural Resources, 



Division of Environmental Health. 1330 Saint 
Mary's Street. Raleigh. North Carolina. Non- 



members may obtain copies from the American 
Water Works Association, Information Services, 
6666 West Quincv Avenue. Denver, Colorado 
80235 at a cost of fifteen dollars ($15.00) U£ to 
20 pages and thirty cents (SU.30) per pay for each 
additional page. 

(e) Community water supply systems shall 
identify whether the following construction ma- 
terials are present in their distribution system and 
report to the Department: 

( 1) Lead from piping, solder, caulking, interior 
lining of distribution mains, alloys and 
home plumbing; 

Copper from piping and alloys, service 
lines, and home plumbing; 
Galvanized piping, service lines, and home 
plumbing; 

Ferrous piping materials such as cast iron 
and steel; 

Asbestos cement pipe; 
Vinyl lined asbestos cement pipe; 
Coal tar lined pipes and tanks. 

(f) Community water systems in operation on 
the effective date of this Rule shall comply with 
the requirements of (b) and (e) within one year 
of the effective date. Community water systems 
which begin operation after the effective date 
shall comply with the requirements of (b) and (e) 
within one year of the date operation begins. 

(g) The provisions of 40 C.F.R. 141. Subpart 
I - Control of Lead and Copper are hereby in- 
corporated bv reference including any subsequent 
amendments and editions. This material is 



(2) 
(3) 

(4, 

(5) 
(6) 

(7) 



available for inspection at the Department of 
Environment, Health, and Natural Resources, 
Division of Environmental Health, 1330 Saint 
Man's Street, Raleigh, North Carolina. Non- 
members may obtain copies from the American 
Water Works Association, Information Services, 
6666 West Quincv Avenue, Denver, Colorado 
S0235 at a cost of fifteen dollars (S15.00) up_ to 
20 pages and thirty cents (SO. 30) per pay for each 
additional page . 

Authority G.S. 130A-315; P.L. 93-523; 40 C.F.R. 
141. 

SECTION .1600 - VARIANCES AND 
EXEMPTIONS 

.1607 VARIANCES AND EXEMPTIONS FOR 
CHEMICALS AND LEAD AND COPPER 

(*) Removal using granular activated carbon 
(except fof vinyl ohlonde) a$%4 removal ucing 
pack e d tower aeration ate identified a* the best 
availabl e technology fof achieving compliance 
with the maximum contaminant levels fof sy«- 
thotio organic chemicals. 

(b) Except a* provid e d » Paragraph fe)r the 
Department may require, as a condition fef the 
Department te grant a variance, a community 
water system et non transient, non community 
water system t» install a«4 t*se afty treatment 
m e thod id e ntified » Paragraph (a)r tf the system 
cannot moot the maximum contaminant level af- 
ter installation a«4 «se &f the prescribed treat 
mont method, the system shall be eligible to 
request a variance. A varianco may only be 
granted if the requirements ei 130A 321 afe met. 

fe) tf a system ea» demonstrate through com 
prehensive engineering assessments, which may 
include pilot plant studies, that the treatment 
methods identified » Paragraph (a) would e*4y 
achieve a de minimis reduction » contaminants, 
the Department may- requir e , as a condition fof 
the Department t& grant a varianco, that the sys- 
tem being granted a varianc e examine other 
treatment methods » accordance with a schedul e 
ef complianco issued by the D e partment. 

fd} If the Department determines that a treat 
ment m e thod examined under Paragraph (e) »f 
this Rul e is technically feasible, the Department 
ma* requir e the system te- install a»4 »se that 
treatment method » connection with a eomph 
anc e schedule. T4*e Department's determination 
shall be based upon studies by the syst e m and 
oth e r relevant information. 

The provisions of 40 C.F.R. 142.62 are hereby 
incorporated bv reference including anv subse- 
quent amendments and editions. This material 



is is available for inspection at the Department of 



669 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



Environment. Health, and Natural Resources, 
Division of Environmental Health, 1330 Saint 
Mary's Street, Raleigh, North Carolina. Non- 
members may obtain copies from the American 
Water Works Association, Information Services, 
6666 West Quincy Avenue. Denver, Colorado 
80235 at a cost of fifteen dollars ($15.00) u£ to 
20 pages and thirty cents (SO. 30) per page for 
each additional page. 



Authority G.S. 130A-315; P.L. 93-523; 40 C.F.R. 
142. 

.1614 BOTTLED WATER AND POINT-OF-USE 
DEVICES 

frry ^m^ i^vtin iiiiviit mnT i ^-^~-\ urn cr pom t ttttttt 

system to «se bottl e d water ©f point of use de- 
vic e s a* a condition fof grant in g a variance »f 
oxomption from toe requirements &f 4-5A- NCAC 
4-8G .1518 to avoid a» unreasonable risk to 
hoalth. 

(b} Public water systems toat- Bse bottled water 
as a condition ef obtaining a varianc e ef e#- 
emption shall moot toe following requirements » 
either paragraph (b)( 1) »f (b)(2) ef ftfts Rul e » 
addition to- requirements » Paragraph (b)(3) »f 
tois Rule: 

(4) 4be wat e r supplier shall develop a»4 ef>- 
e rat e a monitoring program tba* provides 
reasonable assurances toa* the bottled 
water meets aft maximum contaminant 
levels, -the water supplier must monitor 



m 



a representative sample e£ toe bottl e d 
tef fof aft contaminants regulated under 
45A NCAC UG 1518(a) the fast quarter 
toat- ft supplies the bottled water to toe 
public, and- annually thereafter. R e sults 
ef toe monitoring program shall fee p*e- 
vided to toe Departm e nt annually; ef 
44te public water system shall receive a 
certification from toe bottled water com 
pany toat- toe bottled water supplied hr*s 
been takes from a» "approved source" as. 
defined m 24 C.F.R. 129.3(a) wlaeb is 

wftft G4v 150B M(c); toa* toe bottl e d 

» accordance wftk 44- C.F.R. 129.80(g)(1) 
through (4) winch is hereby adopted by 
relerenco to accordance with G.S. 
150B M(c); aed the bottled water dees 
set exceed a«y- maximum contaminant 
levels ef quality limits as set eto to 24 
C.F.R. 103.35, " 440? and 424 vvbftto. are 

wftb G4>r 150B 1 1(c). 4be public water 
system shall provide toe certification to 
the Department toe fost- quarter after ft 



supplies bottled water and- annually 
th e reafter; asd 
(4) 4fte wator supplier shall provide sufficient 
quantities ef bottled water to every person 
suppli e d by the public wat e r syst e m, v4a 
door to door bottled water delivery. 
to) Public water systems that »se point of use 
d e vices as a condition fof receiving a varianc e ef 
e x e mption must meet toe following require 
monts: 

(4) 4he water supplier shall operate afi4 
maintain toe point of use tr e atment sys- 

(-24 44*e wator supplier shall develop a moni 
toring pktft a»4 obtain department ap- 
proval fof toe pk» before point of use 
devic e s ate installod fof compliance. 44te 
monitoring plan shall provide health p*e- 
toction equivalent to a monitoring pktft 
fof central water treatment. 

(4) Effectiv e technology must be properly ap- 
plied under a plan approved by- toe 6e- 
partmont aed toe microbiological saf e ty 
ef toe wator must be maintained as fob 

(A} Adequat e certification ef p e rformance, 
filed testing, and, ft f>et included to. toe 
certification process, a rigorous engineer 
ifig d e sign review ef toe point of use de- 
vices shall be provided; a»4 
(44) 4he design at*4 application ef toe 
point of use devices shall consider toe 
tend e ncy fof increase m heterotrophic 
bacteria conc e ntrations ft> water treated 
with activat e d carbon, ft may be n e c e s 
safy- to ese frequent backwashing, post 
contactor disinfection, and- Heterotrophic 
Plato Count monitoring to ensure that toe 
microbiological safety ef toe water is Ret 
compromis e d. 
(4) Every building connected to toe syst e m 
shall have a point of us e device installed, 
maintained, and adequately monitored. 
4be ri glits anft responsibilities ef toe 
public water system consumer shall be 
convoyed with ftfte upon sale ef prop e rty. 
The provisions of 40 C.F.R. 142.57 are hereby 
incorporated bv reference including anv subse- 
quent amendments and editions. This material 
is available for inspection at the Department of 
Environment, Health, and Natural Resources, 
Division of Environmental Health, 1330 Saint 
Man s Street, Raleigh, North Carolina. Non- 
members may obtain copies from the American 
Water Works Association, Information Services, 
6666 West Quincv Avenue, Denver. Colorado 
80235 at a cost of fifteen dollars (SI 5.00) u£ to 



7:7 NORTH CAROLINA REGISTER July I, 1992 



670 



PROPOSED RULES 



20 pages and thirty cents (SO. 30) per page for 

etch addition il page. 

Authority G.S. I30A-3J5; P.L. 93-523; 40 C.F.R. 
142. 

CHAPTER 21 - HEALTH: PERSONAL HEALTH 



state's familios bolow toe poverty level a* shown 
by tbe most roeont information available from 
foe North Carolina Department to 7 Adminio 
tration. 4toe allocation fo funds to am- county 
f»ay be modifi e d to r e flect actual utilisation m 
previous fiscal years as4 other management ee«- 
sidorationo. 



SUBCHAPTER 21 C - PERINATAL CARE 

SECTION .0200 - LOCAL HEALTH 
DEPARTMENT DELIVERY FUNDS 

.0201 GENERAL 

fa} fobe purpos e fo local health department 
deliv e ry funds is to enhanc e to* provision ef 
prenatal, delivery affo no whom ease by giving 
impetus to toe development to' cooperation be- 
tween local h e alth departm e nts, hospitals affo toe 
private medical sector. Funds afe mad e available 
to local health departments to assist eligible 
women affo their newborns by- reimbursing a 
portion to toe eest to e*e Bf more to toe fei- 
lowing: 

bfe professional fees fof prenatal care, hospital 

delivery affo hospital newborn car e ; 
foH prenatal outpati e nt diagnostic tests affo 

procedures affo prescribed medications; 
(-fo hospitalization fof delivery affo newborn 

care: affo 
(fo hospitalization affo associated professional 
fees prior to d e liv e r .' tof toe following 
conditions: 
(A+ actual e* suspected premature labor; 
(-*fo pyelonephritis; 
(4fo pre eclampsia. 
(-to Local health department delivery funds 
shall Hto be used tof toe following: 
f44 abortion services; 

outpatient postpartum care; 
outpatient newborn core: 



ffo 
to. 



transportation, except as provided to Rule 

.0207 to tots Section; 
(to suppli e s; 
(-to equipment; 
b7-} sterilization; 
(-8) services covered by- other third party fe- 

imbursemont sourc e s: affo 
(fo salaries to personnel. 

Statutory Authority G.S. 130A-127. 

.0202 ALLOCATION OF GRANT FUNDS 

I h e r e shall be allocated sto thousand affo seven 
hundred dollars (S6.700.00) pet yeaf to each 
county to toe state. Additional amounts afe ab 
located based upon each county s proportion fo 
toe total state s bv-e births affo proportion fo toe 



Statutory Authority G.S. J30A-J27. 

.0203 BUDGETING OF FUNDS 

Local health department delivery funds wfo be 
budgeted as a separate Itoe item ontitlod "Deliv 
efy Services" within each local health depart 
ment's Maternal Health budget. 

Statutory Authority G.S. BOA- 127. 

.0204 CLIENT ELIGIBILITY 

ato be eligibl e fef services paid fof through local 
health department deliver/ funds, clients must 
meet toe residency affo financial eligibility fe- 
quirement to 44A NCAC 34A; 

Statutory Authority G.S. 130A-127. 

.0205 AUTHORIZATION AND 
REIMBURSEMENT 

(to -fee local health department shall authorise 
each client sponsored by- toe delivery funds. 
Authorizations afe limited to thoso services listed 
to. R-foe .0201 to tois Subchapter. 

fb} fohe authorization shall be seto to toe aa- 
ticipated providers fo eafe fef e ach authorized 
client. The authorization shall include, bto nto 
be limited to toe following information: 

(fo> nam e to client; 

(fo medical s e nic e authorized; 

(fo expiration 4ate to authorization; 

ffo amount authorized; affo 

(to signature to authorizing official. 
(to -Pbe local health department shall negotiat e 
rates to reimbursement fef services to be pro 
vided under toe deliver; , funds. Thes e rates shall 
Hto exceed toe medicaid ftoe fo reimbursem e nt 
to effect at- toe time toe claim is received by- toe 
division. 

(fo A health department may nto authorize Be* 
pay more than a total to five hundred dollars 
($500.00) pef moth e r infant pan 1 fof inpatient 
delivery affo newborn services, except that- a 
health department w+to a contracted bfob ffsb 
maternity clinic ?£&*■ authoriz e &f*& pay «p tor 
bto Rto more than a total to seven hundr e d affo 
fifty dollars ($750.00) pef mother infant paif fef 
high ask inpatient delivery affo newborn servic e s 
fof mothers w-be were enrolled to toe high bto 
maternity clinic affo th e ir lniant(s). 



6~1 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



r^TT rT rTCTTTTTT HOT T.U III IV 111 1 1 IS T TTTTT UUU1UI U- V XTOT 

pay more toa» a total el frve hundred dolloro 
($500.00) fof e ach pro dolivory hospitalization as 
allowed undor Rule .060l(a)('1) el this Section. 
Suceossive predeliv e ry admissions el a givon eii— 
eat to toe oamo hospital separated by a period 

mission. 
(£) Other rul e s govorning authorization a&4 
billing processing, payment limitations, a»4 limi 
tations e» billing clients sponsored by toe doliv 
ety funds a*e found to -foA XCAG 21 A. 

Statutory Authority G.S. 130 A- 127. 

.0206 MONITORING AND EVALUATION 

The local health department shall complete ae4 
submit toe Maternal aftd- Child I lealth Delivery 
Fund School \ Ioalth Fund Annual Report to toe 
Division e» a form provided by toe Division 
within 44 days after toe es4 el toe contract pe- 

Statutory Authority G.S. B0 A- 1 27. 

.0207 REIMBURSEMENT/TRANSPORTATION: 
BULK PURCHASE/MEDICATION 

I U J TTTTTH 11LU1 111 ULI '\JJ II11UI11 UL11 " OI T IUI 1U J 1 1 1 U T 

be used to reimburse fof* 

(44 private motor v e hicle mileago a»4 public 
conveyance fof transporting prenatal pa- 

^^^^^^^^ ^^i ■ > ' ^ i \ j '. nutti f^^^^J^ r-i ■ J ■ i t \ -\1 i_iw-r~l t t \ " 

IIL'IH J IT_J UUl VJ I I.T.FUHI t III ILJ I I IV rV rllvlx V I I 1 1 T T 

clinic; 
f2) privat e motor vehicle mileago a»4 rescue 
squad a»4 ambulance service ohargos fof 
transporting prenatal patients fof a» out 
of county hospital dolivory (-the rescue 



squad ef ambulanco vehicl e must be pet- 
mitted by toe Offic e el Emorgoncy A4e4- 
ieal Services, Division e£ Facility Sorvicos, 
Department el Human Resources); afrd 
ty purchaso el toe following medications i» 
bullc fof prenatal atto postpartum pationto 
consistent w+fo. legal requirements relating 
to toe purchasing aee dispensing ef 
medications: R.ho(D) immuno gobulin, 
efal tocolytic agontG, ampicillif fr sulfa 
drugs, a»4 vitamin aft4 minoral suppl e 
monts. 
fb4 Individual authorizations afe set required 

fop toe dispensing el proscribed medications pef- 

ohased to bullc. 
(©) 44te local health department shall negotiate 

rates el reimbursement fof transportation sef- 

vicos. 44ie negotiated Fate fofr 

(4A mileage costs el a privately owned motor 
vehiclo shall »et oxcood toe state's maxi 
mum travel allowance pef v e hicle FftHe fop 
automobilo oxponoos as established to 

&Sr44«-Bf 

(-2^ pubho convoyanoo shall fret exceed toe 

customary charges; and 
(^ ambulanco aftd rescue squad s e rvices shall 
net include chargos fof additional person 
fret noodod whilo to transit. 
fd4 A local health d e partment m&f «et a«- 
thorizo fref pay a patient fof transportation costs. 

|, i ) I ii.'il U , n I Hi .1 in.iWmunt jl^KiratTi Ti niilf r- l-i 'ill 
y^^f L^^'*^TTT ^^^^^^^TT V 1 \*' L T^^^TTT^T^^T V.1 ^. 1 r^^^^^^^ ^T^^^T^^ ^^^T^^^x 

fret be esee to reimburse fof sorvicos available ) fo 
toe local health departm e nt, with the exception 
el medications purchased to bullc as authorized 
by those Rules. 

Statutory Authority G.S. 130A-127. 



CHAPTER 25 - LOCAL STANDARDS 
SECTION .0200 -STANDARDS FOR LOCAL HEALTH DEPARTMENTS 

.0213 FOOD, LODGING/INST SANITATION/PUBLIC SWIMMING POOLS/SPAS 

(a) A local health department shall provide food, lodging, and institutional sanitation and public 
swimming pools and spas services within the jurisdiction of the local health department. A local health 
department shall establish, implement, and maintain written policies which shall include: 

(1) The frequency of inspections of food, lodging, and institutional facilities and public swimming 
pools and spas with the following being the minimum: 



Type of Establishment 

Bed and breakfast homes 

Bed and breakfast inns 

Child day-care facilities 

Institutions 

Local confinement facilities 

Lodging 

Meat markets 



Frequency 

1/year 

1/6 months 

2/year 

2/year 

1/year 

1 sear 

4/year 



7:7 NORTH CAROLINA REGISTER July I, 1992 



672 



PROPOSED RULES 



Meat markets e* 

summer camps which are closed for 

a period of 60 days or more 

Migrant housing water and sewage 

evaluation 

Mobile food units 

Private boarding schools and colleges 

Public swimming pools and spas 

Pushcarts 

Residential care facilities 

Restaurants 

Schools 

Summer camps 



1/3 months 
of operation 
(or part 
thereof) 

1/year 

4/year 
1/year 
1 /operational 

season 
4/year 
1/year 
1 /quarter 
1/year 
1/year 



For the purpose of restaurant inspections, a food sampling inspection shall fulfill the requirement 
of an inspection provided a minimum of three distinct samples are taken from the restaurant. A 
maximum of one food sampling inspection per restaurant, per year, may be used to meet the 
quarterly inspection requirement for restaurants. 



(2) 



Provisions for investigating complaints and suspected outbreaks of illness associated with food, 
lodging, and institutional facilities. Corrective actions shall be taken in cases of valid complaints 
and confirmed outbreaks of illness. 

Provisions for keeping records of activities described in Paragraphs (a) (1) and (2) of this Rule. 
A local health department shall establish, implement, and maintain written policies for the pro- 
vision of sanitation education for food service personnel and orientation and in-service training for 
sanitarians. The policies shall include the following minimum requirements for sanitarians providing 
food, lodging, and institutional sanitation services: 

(1) Initial field training for newly employed sanitarians; 

CDC Homestudy Course 3010-G or its equivalent as approved by the Division of Environ- 
mental Health; 

North Carolina State University Food Protection Short Course or its equivalent as approved 
by the Division of Environmental Health; and 
Compliance with the Board of Sanitarian Examiners' requirements. 



(3) 
(b) 



(2) 
(3) 

(4) 



Statutory Authority G.S. 130A-9. 

****************** 

i V otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for 
Health Services intends to amend rule(s) cited as 
15A NCAC 16 A .0109; ISA NCAC 24 A .0402 - 
.0403. 

1 he proposed effective date of this action is Oc- 
tober 1, 1992. 

1 he public hearing will be conducted at 1:30 
p.m. on July 22, 1992 at the Archives and History 
Bldg., (First Floor Auditorium), 109 E. Jones St., 
Raleigh, X.C. 



Re 



asons for Proposed A ctions: 



ISA NCAC I6A .0109 - To amend the Migrant 
Health Program Rules and eliminate inpatient 
hospital services as a covered service. This action 
is necessary in order to assure the federal funding 
authority that there will be reasonable distribution 
of financial resources for the Migrant Program 
during the July - November Migrant Season. The 
assurance is required under a special condition on 
the Migrant Health Notice of Grant Award for the 
current budget period. 

15A NCAC 24A .0402 - .0403 - To amend the Pur- 
chase of Medical Services administrative rules in 
order to assure conformity with the covered ser- 
vices and the reimbursement policy of the Migrant 
Health Program as amended. 

C omment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 



673 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



Barkley, Department of Justice, P.O. Box 629, 
Raleigh, NC 27602-0629, (919) 733-4618. If you 
desire to speak at the public hearing, notify John 
P. Barkley at least three days prior to the public 
hearing. Oral presentation lengths shall be limited 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or address proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL IN- 
TERESTED AND POTENTIALLY AF- 
FECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS, INSTI- 
TUTIONS, OR AGENCIES MAKE THEIR 
VIEWS AND OPINIONS KNOWN TO THE 
COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL PRO- 
VISIONS OF THE PROPOSED RULES. THE 
COMMISSION MA Y MAKE CHANGES TO 
THE RULES AT THE COMMISSION MEET- 
ING IF THE CHANGES COMPL Y WITH G.S. 
I50B-21.1(f). 

Auditor's Note: These Rules have been filed as 
temporary rules effective July 6, 1992 for a period 
of ISO days to expire on January 2, 1993. 

CHAPTER 16 - ADULT HEALTH 

SUBCHAPTER I6A - CHRONIC DISEASE 

SECTION .0100 - MIGRANT HEALTH 

.0109 COVERED SERVICES 

(a) The Migrant Health Program shall provide 
reimbursement for the following services pro- 
vided to migrants which are necessary and essen- 
tial for theLr immediate health needs: 

(1) ambulatory care services in the form of 
physician and dentist services for acute 
?ain relief inclu ding extractions, preven- 



tive, and restorative care; 



(2) other services including psychologist's and 
psychiatrist's professional fees, laboratory 
tests, diagnostic x-rays, drugs and 
medications; and 

(3) hospital outpatient and emergency room 
services. aft4 

f4} hospital inpatient s e rvices. 
(b) R e imbursement fof inpatient authorization 
scrvicoo shall be limited a* follows: 



(4i Hospital service aed admitting physician 
service may be authorized fof the fifst- 
throe day* ef eaeh admission; 

f3) Consulting physician service may be au- 
thorized fof e«e day pef admission; if 
consulting physician service fo more than 
e«e specialty is requir e d, servic e fof e ach 
speciality may be authorized fof e«e day 
pef admission; 

($} Surgeon sorvieo may be authorized fof foe 
day before surgery, foe day ef surgory en*4 
foe day aftef surgery; 

rTT i ii iv ..ti 1 1 Dnro i\j sj^^ uvi " ivx* r 1 1 ut y t^& uuti ivi ic^^y 

I ■ A r- th.t . -l J i [ rt t .-t t firnn r ■ ^infl 

(5) Radiologist s e rvice may be authorized fof 
a maximum ef throe days pet admission. 
(b) fo) The Migrant Health Program shall not 
provide reimbursement for foe following s e rvices: 
(44. hospital inpatient services provided fof inju 

«-~» ■••».' - 1 1 «-w 1 

(-24 services provided for custodial care. 

Statutory Authority G.S. 130A-223. 

CHAPTER 24 - GENERAL PROCEDURES FOR 
PUBLIC HEALTH PROGRAMS 

SUBCHAPTER 24A - PAYMENT PROGRAMS 

SECTION .0400 - REIMBURSEMENT 

.0402 REIMBURSEMENT FOR INPATIENT 
HOSPITALIZATION 

(a) The Department shall reimburse providers 
of authorized inpatient hospitalization services at 
the Medicaid per diem rate in effect at the time 
the claim is received by the Department, except 
fo foe Migrant Health Program. 

(b) The Department shall reimburse providers 
ef authorized inpatient hospitalization sorvicoo 
under foe Migrant I Ioalth Program at- foe fate e£ 
twe- hundred dollars ($200.00) pef day ef foe 
Medicaid pef diem fater whichever i* less? 

Statutory Authority G.S. 130.4-5(3); 130A-124; 
130A-I27; 130A-129; 130A-205; I30A-223. 

.0403 REIMBURSEMENT FOR 

PROFESSIONAL, OUTPATIENT, 
OTHER SERVICES 

(a) The Department shall reimburse providers 
of authorized outpatient services, professional 
services, and all other services not otherwise 
covered in the rules of this Section at the 
Medicaid rate in effect at the time the claim is 
received by the Department, except in the 
Migrant Health Program. 

(b) The Department shall reimburse providers 
of authorized outpatient hospital services under 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



674 



PROPOSED RULES 



the Migrant Health Program at 80 percent of the 
Medicaid rate in effect at the tune the claim is 
received by the Department. 

Statutory Authority G.S. 130A-5(3); 130A-124; 
130 A- 127; BOA- 129; 130 A- 177; I30A-205; 
130 A- 223. 



****************** 



iV otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for 
Health Services intends to repeal rule(s) cited as 
15A XCAC 18.4 .0101 - .0132; and adopt rule(s) 
cited as ISA XCAC 18A .0134 - .0183. 

1 he proposed effective date of this action is Oc- 
tober 1, 1992. 

1 he public hearings will be conducted at: 

July 21, 1992 

2:00 p.m. 

EHNR- Washington Regional Office 

Conference Room A 

1424 Carolina Avenue 

Washington, N.C. 

July 22, 1992 

1:30 p.m. 

Archives and History Bldg., 

(First Floor Auditorium), 

109 E. Jones St., 

Raleigh, N.C. 



R 



easons for Proposed A ctions: 



15A NCAC 18A .0101 - .0132 - The existing 
Crustacea rules were adopted in 1976 with some 
revisions made in 1987. These Rules are outdated 
and do not recognize new technologies and proc- 
esses. 

15A NCAC 18A .0134 - .0183 - The purpose of these 
Rules is to have up-to-date rules which will provide 
public health protection for the consumer and at 
the same time recognize the needs of the Crustacea 
industry. 



Cc 



■ omment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P.O. Box 629, 
Raleigh, XC 27602-0629, (919) 733-4618. If you 
desire to speak at the public hearing, notify John 



P. Barkley at least three days prior to the public 
hearing. Oral presentation lengths shall be limited 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or address proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORT A XT THAT ALL IN- 
TERESTED AXD POTENTIALLY AF- 
FECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS, INSTI- 
TUTIONS, OR AGENCIES MAKE THEIR 
VIEWS AND OPINIONS KXOWX TO THE 
COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL PRO- 
VISIONS OF THE PROPOSED RULES. THE 
COMMISSION MAY MAKE CHANGES TO 
THE RULES AT THE COMMISSION MEET- 
ING IF THE CHANGES COMPLY WITH G.S. 
150B-2 1.1(f). 

CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A - SANITATION 

SECTION .0100 - PROCESSING AND SHIPPING 

OF COOKED CRUSTACEA AND CRUSTACEA 

MEAT 

.0101 DEFINITIONS 

fte following definitions shall apply m &e ifi- 
terpretation a«4 onforcomont ef S e ction .0100 ef 
this Subchapter: 
(44/ "Crustac e a m e at" m e ans the moat ef crab, 

lobster, crayfish, an4 shrimp. 
(-2) "Food contact surfac e " m e ans the parts 

»f e quipment, including auxiliary equip 

m e nt. which may be ift contact with- the 

food being processed, ©f which may drain 

kftte tke portion ef- equipment with- which 

fee4 is m contact. 
(e-)- "Fresh crustacean" means a liver »w- &f 

froz e n crustacean which shows »e decom 

position. 
(44 "Internal temperature" moans the temper 

atur e e4" the animal ef product as opposed 

t» the ambi e nt temp e ratur e . 
(44. "Packing shipping" means inspecting, final 

packaging, placing Crustacea meat under fe- 

frigeration. aft4 shipping. 
(44 "Pasteurization, pasteurized" em4 similar 

terms means the process ef heating every 



675 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



particl e ef crustacoa moat m a» approved 
hermetically ooalod contain it te a tompor 
ature ef at least 4-&# dogroos £r and holding 
it continuously at ef abovo At* temperature 
fef at- least eee minut e i» properly operated 
equipment approved by the state regulatory 
authority; provided that nothing » this de- 
fuiition shall be construed as barring any- 
oth e r past e urisation prooooo which has boen 
found equally effectiv e ae4 which is ap- 
provod by the Division. 
(-7) "Piclung/pacldng" moans picking Crustacea 

moat as4 placing the moat m a container. 
(&} "Potable water" moans water from a sup 

ply approved by the Division. 
(9) "Sanitise" moans the approved bactericidal 
treatment by a process which moots the 
temperatur e an4 chomioal concentration 
levels » 4-5A NCAC VIA rJ6+»r 

(4-0} "Division" m e ans the Division ef Envi 
ronmontal Health ef its authorised ag e nts. 

(444 "Adulterated ef misbrandod" means any- 
Crustacea having boon cooked, pick e d, ef 
packed i» a plant which has net boon certi 
f+e4 by the Division m accordanc e with the 
requirements ef these Rules ef which ape 
polluted as determined by bacteriological 
analysis ef if the Crustacea meat is putrid ef 
unfit fef human consumption ef which is 
net labeled with a valid id e ntification num 
bef awarded by the Division ef which hav e 
boon exposod te any unsanitary conditions. 

(43) "Person" moans an individual, firm, asso 
ciation, organisation, partnership, business 
trust, corporation, ef company. 

Statutory Authority G.S. 130A-230. 

.0102 REQUIREMENTS FOR OPERATION 

(a) Inspection a»4 Approval. Ne person shall 
oporato a Crustacea plant within the State ef 
North Carolina until he shall have complied with 

t hi"*! to 1 1 n 1 1 ii^i* n 1 1 1 \i ' ' i i "i 1 1 * ■ 1 1 1 ■ l i ■ 1 1 . - ti ill- int « >i ■ 1 1 1 h.ii'ii 

"Xv luTrrrnTrig mrCTr U11U TTTTTTT TTTTCTt I * n.ClTT '1 1U11 I TVI V T7 

boon inspected and approved by the Division. 

(b) Permit . ^ve crustacoa meat plant shall be 
operated » North Carolina until a permit te ep- 
efate shall have boon issued by the Division. A 
permit te operate shall be issuod enly after a 
sanitary inspection by the Division shows that 
the plant complies with these Rul e s. 

(e) Application. Application fef ouch i«- 
spoction shall be made m writing by the person 
r e questing a permit te operate. Such application 
forms ea» be obtain e d at the shellfish sanitation 
office). A44 certificates ef inspection an4 permits 
shall be posted in a conspicuous place m the 
plant. Violation ef afty- ef the following rules 
shall constitute sufficient caus e fef revocation ef 



II I\J Ut'llnn Ev UL'UIUIU. I *T_J L^Jl 1 1 III IU U LJ VI U. I V Jl IIICT 

be isouod ef reissu e d until the plant has boon in- 
spected ef roinspootod by the Divioion. 

I U i I lL'l'l \.f TUI rTr l IUIIJ. I HII I U HI IVJ -*17V_T_'IJ It'll IM'll I 

fef proposed Hew- construction ef remodeling 

-II IU.CT L'V oaWrTTrrTUn rTTT 1UT I^TTT^ Lll IU CTT -T TTTTmrTT ITT RIv 

shellfish sanitation offic e . 
Statutory Authority G.S. BOA- 230. 

.0103 PLANTS AND GROUNDS 

(af Plant Dooign. Plant dosign shall provide fef 
continuous flow ef the yaw- materials an4 product 
te- prevent contamination by- e xposure te areas 
invoK'od m earlier processing stops, rofuoo, ef 
other objectionable areas. 

fb4 Plant Location. Plants i» which crustacoa 
meat is picked a»d packed shall, te the e xt e nt 
feasible, be se located that they wiH net be sub 
jeet te flooding by high tides, tf plant floors are 
flooded, processing shall be discontinued until 
after waters have receded a«4 the facilities ate 
cleaned a&4 sanitised. (A minimum plant ele- 

l-itnii Q » I i t 1 ■ * • ■ ■ ♦ tin,) I , i , it ' i K , ii i , x t-rt i i ■ ■ r-\ 1^« ill-t il:',t ,-u- 
TTTTTTTTT UT IX t TU\X\J\ I T' T_T rCTT U. T 7^7 T f I 1 1VT-11 I 111 i,I 1 T T UlU 

shall be provid e d i» Hew plant construction.) 
fe) Separation ef Op e rations. S e parate rooms 
ef areas approved by the Division should be 
provided fef receiving, washing, ane cooking 
Crustac e a. 
(4) Separation ef Processes. ¥he processes set 
eet i» (4-f te (^i ef this Subdivision shall be eaf- 
rie4 eat i» separato rooms ef facilities, a«4 the 
int e rior walls s e parating th e s e rooms shall ext e nd 
from floor te coiling a«4 contain only necessary 
openings: 
(44 cooling; 

picking, packing; Mechanization w4h- r e sult 

ie a single flow through process Bad 

modification ef these tw-e requirements 

would be necessary te permit the ese ef 

ene room fef these procedures; 

packing/shipping; 

refrigeration ef picked crustacoa meat; 

provided that m ae emergency, cook e d 
Crustacea may be stor e d i» the same fe- 
frigeration room w-ith packed crustacoa 
m e at; 

refrigeration ef uncooked it e ms such as 
fresh crustacoa, bait, ef frsbf 
pasteurising. 

rrr i ivvm i il.'. rTTtnTrrv i iru iiu >'i iuii 

be provided fef contain e r storage, locker a»4 
lunch, toilets, aftd sales. 

(4j Coolcing Room. 44ae coolring afea ef room 
shall be undor permanent cov e r, located between 
the afea fef receiving paw crustacoa afi4 the 



& 



(4) 



& 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



676 



PROPOSED RULES 



cooling room, ash be properly vented t© assure) 
the quick removal el steam. 

fg} Cooling R.oom. !rb# construction a»4 ar- 
rangement el A© cooling room shall £ave ade- 
quate protection te the cooked Crustacea from 
flies, insects, rodents, dust, plant traflic, aft©, the 
washing down operation, ^fois room aft© the 
refrigeration room fof cooked Crustacea shall 
open directly fete the picking room ©f 
screened in afea &f passageway through which 
Crustacea af© transported after cooling. 

fh} Adequate Spaco. Adequate spac e shall he 
provided fof ah routino operations te permit 
sanitary 1 handling ef Crustacea affo Crustacea m e at 
aft©, thorough cleaning ©I equipment. 

frt Delivery Window. ¥he delivery window 
between the picking packing aftd 

pacldng shipping rooms shall he equipped with 
a corrosion resistant shelf el m e tal ef equal 
smooth non porous surface, draining toward the 
packing room. 

fj} Lockers. Rooms ef lockers shall he pfe- 
vided which have adequate capacity fof storing 
clothing, aprons, gloves, a»4 other personal arti 
eles ef employees. 

Statutory Authority G.S. I30A-230. 

.0104 FLOORS, WALLS, AND CEILINGS 

fa} Floors. Ah floors shall he el smooth ma- 
t e nals a»4 se constructed a*> t© be easily cleanablo 
a«4 shall he kept clean a©4 » good repair. 
Floors fo coohng, picldng, pacldng, refrigeration, 
a«4 toilet rooms shall he ©I concrete ©f other 
equally imp e rvious anh e asily cleanable mat e rial. 
Adequate floor drainage shall he provided fo. ah 
areas where* floors ate subject t© flooding type 
cleaning ©f where normal operations release ef 
discharge water ef other liquid waste* eft the 
floor. 

(4*+ Walls a»© Ceilings. Ah walls a»© ceilings 
shall he ©I hfe concrete, cement plaster, concrete 
blocks, painted wood, ef equivalent material 
having a smooth, light colored surface which w4h 
endure repeated washings ash shall he free from 
cracks, ledges. ae4 shelves. Doors aft©, windows 
shall he properly fitted a»4 maintain e d » good 
repair. 

Statutory Authority G.S. I30A-230. 

.0105 ANIMAL AND VECTOR CONTROL 
MEASURES 

fa} Pa? dent Control. ?he plant shall he se 
constructed a* te prevent entrance el rodents, 
a»4 there shall he »© evidence el rodents fo a»y- 
part el the plant. 



(h) Vonnin Control. Effective measures shah 
he tale e n te keep domestic animals, fowl, flies? 
rodents, ae© other vermin ©e* el the establish 
ment a«©! to pr e vent their breoding ©f prooonco 
©ft the promises. Ah openings te the outer aif 
shah he effectively protected against the entranco 
el such ins e cts as©, rodents hy- s e lf closing doors, 
closed windows, 16 mesh ef finer screening, 
controlled ah currents, ©f other effective) m e ans. 

fe} Rodenticides. R.odenticides, which ate 
highly toxic te humans, shall ee* he stored fo 
Crustacea meat processing plants ash shall e©t 
he used except under the supervision ef a licensed 
pest control operator ef other qualified specialist. 
Rodenticides, which have a fow- toxicity fof h«- 
mans. shall he identified, stor e d, ash used fe such 
a manner a* te prevent contarnination el the 
product ae4 te cause ft© health hazards te wa- 
ployoes. 

fd4 Pesticides. Only those pesticides shall he 
used which have been approved fof specific ©se 
a«4 properly registered with the Environmental 
Protection Agency a©4 with the North Carolina 
Department el Agriculture fo accordance with 
the "Federal Environmental P e sticid e Control 
Act" aft4 the "North Carolina Pesticide Law". 
Such pesticides shall he used a* directed eft the 
lab e l ae4 shall he s© handl e d a©4 stored as te 
avoid health hazards. 

Statutory Authority G.S. I30A-230. 

.0106 LIGHTING 

fa} Natural ef artificial lighting shall he pf©- 
vided fo ah parts el the plant. Minimum lighting 
int e nsiti e s shall he a* follows: 

f4© ?5 fee* candles eft worldng surfaces fo 

picking afth packing rooms areas. 
f3} 3© feet candles measur e d at a height el ©ft 
inches above the floor throughout the f©s* 
el the plant. 
*b-f light bulbs, fixtur e s ef other glass ses- 
pendod within the plant shall he protected te 
prevent contamination fo ease el breakage. 

Statutory Authority G.S. I30A-230. 

.0107 VENTILATION 

Ventilation shall he provided te eliminate odors 
im4 condensation. 

Statutory Authority G.S. 130A-230. 

.0108 WATER SUPPLY 

faf Only potable water shall he used t» afty- part 
el the plant. 



i 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



(b) Aft atf cooling, picking, aaa packing rooms 
shaft be provided with faucets ase wash down 

(e) A» automatically rogulatod hot water sys- 
tepft shah be provided, which has sufficient ea- 
pacity t© furnish water with a temperatur e ©f at 
least 44© degrees Ft during ah hours ©f plant ©p- 
eration. 

(4) Suffici e nt water shaft he availabl e fop aft 
plant needs an4 shall be a pressure supply sys- 

(e} Ifot a»4 cold water outl e ts dooignod fop the 
facility shaft he provided at eaeh siftk- compart 
merit, except that warm water only may- he ae- 
ooptabl e at hand washing sinks as provided by 
jktk MQ9 (e4 ©f thps S e ction. 

Statutory Authority G.S. I30A-230. 

.0109 PLUMBING AND RELATED FACILITIES 

(a) Aft plumbing shall comply with applicable 
plumbing codes. 

fb) There shall be »©> cross connections be- 
tween the approved pressure water supply a«4 
water from a non approved source, ar+4 there 

c- 1"* o 1 1 lr^^ ^^^i f i \ T 1 I f i^ > i h f ^^^^^^-^^^^^^^^^-^^ ^^-^^^^^^^^j-i ^^^-^^^^^* 
5TTFTCT L*^.' 1IV HALUIL'J \J I LU 111 1 W I 1U1IJ 1111 VJ U CI r " 1111.11 

the approved supply might be contaminated by- 
back siphonage. 

L^^\ I r 1 ■ j T" ^ - r t ■ , I I Jr^^ ^^t 1 ■ * ' i ■ l r > \ --, % ' .-> t i~\ r-\ - ^^^^ t^^^^^^^r 

^^T TTITIv 3 1 II U J I 'V (.1 1 IV-TI^.71 T, ' 1 IV IU * UUTI T IUI U ' VI T 

30 employees among the fipst 400 employees, aft© 
at least ©«e lavatory fop each 34> employees » 
excess ©f the fost 400t (Twenty four inches ©f 
wash siftk ©p 4-8 inches ©f a circular basin, when 
provided with water outlets for- such space, wfti 
be considered equivalent to- ©pie lavatory.) 
f4) Hand washing facilities shall be convenient 
t© the work areas, a»4 s© located that the person 
responsible fop supervision ea» readily observe 
that employoos wash their hands before b e gin 
ftiftg work ar+d after e ach interruption. There 

E H ' | 1 I r~i , 1 Q t 1 . t- 1 .-* n «-i a 1 'ii ■■itn «-i ■• t n th -i n-i,'l-inn rrw\jTi 
"7TTTT1T T!TC CTT I VT1 \7X CTTU 111 I UlUl f 11 1 1 1 IV LIll'IUI I E rTTTTTT 

fop «se by packing room workers. 

(e) Fbe lavatories shall be provided with b©t 
water at l e ast -10© degrees Ft e ith e r from a con 
trolled temperature sourc e with a maximum 
temperature ef 144 dogroos Ftt ©p from a h©t- 
and cold mixing ©p combination valve Steam 
water mixing ©p st e am water combination valves 

B n • 1 1 1 nai an < < ■ ■ > i 

(f) Supplies ©1 soap ap»4 single s e rvice towels 
aft4 protected disp e nsers shaft be available Heap 
the lavatory. Other sanitary drying devices, if 
approved by the Division, ape acceptable. Adja 
6etft t©- the lavatories, a container ©f suitable 
construction shah be provid e d fop the s©le p©p- 
poso ©f sanitising the hands fo a» approved s©4- 
ution ©f adequate strength, 400 parts pep million 



(g) Conveniently located, separate toilets shall 
be provided fop eaeh se* exc e pt that separate fa- 
cilities nood »©t be required whon family oper 
ations ape carried ©» &h4 satisfactory toilets ape 

» \-f D >-» I i.'u CXvCQ Kr J j UI " 1 1V^ I 1 1 IV L* 1U1IT 1IU.U IUII VI L11U1 1 

40 employees. 

fb} Toilet room a»4 privies shall be protected 
against the entrance ef flies. Doors ©f toilet 
rooms a»4 privies shaft set open directly iftt© 

L ' 1 O *_^J 39XXZE 11 J Wl J UI TTT& pKHTT CD RB UTTOn L/U UV II 

closing. Toilot rooms api4 privies shall be kept 
clean, i» good repair ap>4 furnish e d with toilot 
paper. 

fl) Toilet rooms a«4 privies shall be ventilated 
by a direct opening te- the outor a»7 ©p by a PHe- 
chanioal vontdating system. Aft vents shall be 
screened ©p hav e self closing louvoro. 

(f) Fixtures, ducts, a«4 pipes shall H©t be s© 
suspended over worldng areas that dpfo ©p 
condensate FHay contaminato foods, paw- materi 
alsr ©p food contact surfaces. 

fk} Plumbing facditios a«4 equipment shall be 
s© constructed aftft se- located as t© permit »©• 
splashing ©f water onto picking tables, pacldng 
tables, moat t© be ©p already packed, pacldng 
cans, picking pans i» transit, unpicked cooked 
Crustacea, ©p shelf ©f the window through which 
picked crustacoa moat is delivered t© the pacldng 
room. 

(1) Plumbing facilities aft© equipment shall be 
s© plac e d as t© facilitate the flow ©f plant activ 

« ♦ « . t f --\r\f\ | n i-. d -i < i ■ i n t . i l * ■- . t iiIiiIa ■! ♦ t ri.^ C ■> m . t tiiii^i 
1 1 IV UI III I_l I 1V1U11UI1 I \r U -*^' J tTTTTT^' LI I 1 1 IV* L**cU 1 IV llil l~ 

avoiding crowded conditions. 
Statutory Authority G.S. /30A-230. 

.0110 SEWAGE DISPOSAL 

fa4 Aft sewage as4 other hquid wastes shall be 
disposed ©f i» a public sower system ©Pt i» the 
absence ©f a public sewer system, by a» approved 
sewage disposal method as provided fo "Sewau e 
Disposal Systems," 44A N'CAC 4«A t4Q00t 

fb+ Privies shall be permitted only whore 
water carnod soworago systems ape set foasible. 

Statutory Authority G.S. 130A-230. 

.0111 CONSTRUCTION OF UTENSILS AND 
EQUIPMENT 

All equipment aftft utensils shall be s© designed 
a»4 ©f s©eh material a»4 worlunanship as t© be 
smooth, easily cleanable, aft4 durabl e apfo shall 
be kept fo good repair. ¥he food contact shp- 

tfifNfii- .->» i~\ r~i l l t r\ m int 'in.-t l itiinrilf I 'h ' | I I 1 t~\ ■ \ . 1 . 1 1 t 1 H T1 

ITT*t^*"^ PT ^^TTTI I " I i^TTT - HI I U 11 1 VI I .'II J L'l ILllTy in uuvinn'ii, 

be easily acc e ssibl e fop cleaning, non toxic. e©p- 
rosion r e sistant, nonabsorb e nt, apfo f+ee ©f open 
s e ams. 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



67 S 



PROPOSED RULES 



Statutory Authority G.S. J30A-230. 

.0112 GENERAL CLEANLINESS 

fal Material aftd equipment aat t» routino ase 
shall be stored m designated rooms ef areas. 

fb) 44*e proc e ssing areas el the plant shall set 
be used fef other operations whilo crustacoa a?e 
being processed. 

fe) >fe unauthorized persons shall be allowed 
» the processing areas el the plant at- saw time. 
Sales ©I Crustacea ef Crustacea meat shall fiat he 
made from a»y processing portion ef the plant 
ef by- aft processing personnel. 

fda Premises shall he cl e an as*& fee el litter aftd 
rubbish. 

Statutory Authority G.S. J 30.4-230. 

.0113 CLEANING OF BUILDING AND 
EQUIPMENT 

I ; I i 1 1 i , ^ p 1 - I t -i t intin,^r -hill 1^^ 1 - . . r-. t ^lfinn fiT^W 

I U J I 1 IV. L'llU I I lillV I R'l _'l Kin t' V rTCTT (_ IVTX1T HI 1U 

ah- utensils aftd equipment shall he thoroughly 
cleaned at- the eftft el each day s operation a«4 
more often t£ necessary. Food contact surfac e s 
shall he sanitized at- the eftd- el eaeh day's opera 
tion. Sanitized shovels shall aet he stored eft the 
floor. Piclcing pans aad- lcnivos shall he cleaned 
aftft nnsed frequently i» a bactericidal solution 
during the day s operations, such as after delivery 
el meat te- the paclang room. Piclung lcnivos 
shall fiat he padded ' . vith paper towels ef rags . 

fba Facilities shall he provided aad- used lap the 
cleaning a»a sanitizing el utensils a»4 equip 
ment. 44>f e ven' aft pickers, a two compartment 
sink, with bet- a«4 ee4a running water shall be 
located ha the pieldng room. Facilities fef 
washing scrap containers shall be provid e d. 

Statutory Authority G.S. BOA- 230. 

.0114 BACTERICIDAL TREATMENT OF 
LTENSILS AND EQUIPMENT 

AH lood contact surfaces shall be treated by e«© 
ef more el the following methods: 

(-H Exposure fef at- least 44 minutes at- a tern 
perature el at- least 44ft degrees 44r ef fef at 
least five minutes at- a temperature el at- least 
=ftft degrees 44r m a steam cabinet equipped 
w4tb a thermometer located m the coldest 
zone; 

f4+ Immersion fef at least ©«e minute bar ef 
exposure fef at least a»e minute te a flow 
»i st solution maintained at net less thaft 4-ftft 
parts eef million el free chlorin e ©f its 
e quivalent; AH food contact surfaces must 
be '.vetted by the bactericidal solution ae© 
piping. s© treat e d. must be filled. 
Bactericidal sprays containing »©t less than 



2ftft parts ©ef million el free chlorine ©f its 
equivalent aaay- he asea fef largo equipment ? 
Bactericidal tr e atment watb chemioals is fiat 
e ff e ctiv e unless the surface has boon thor 
oughly cleaned; 
fa) Afty- bactericide approved by tee Division 
is satisfactory fef ase » connection watb 
crustacoa plant sanitation. 

Statutory Authority G.S. 130A-230. 

.0115 STORAGE OF EQUIPMENT 

Equipm e nt aft©, utensils, which have been 
cleaned aft© given bactericidal treatment, shall be 
stored se as te be protected against contam 
ination. 

Statutory Authority G.S. 1 30 A- 230. 

.0116 RECEIVING OF CRUSTACEA 

faa Only fresh crustacoa shall be accepted fee 
processing. >fe crustacoa plant shall piefe 
Crustacea meat from afty inter plant shipment el 
cooked crustacoa ©f portions thereof without 
special authority from the Division. 

fba Fresh crustacoa shall be cooked as soon as 
possible aft e r receipt at the processing plant. 

Statutory Authority G.S. 130A-230. 

.0117 COOKING 

fa+ Crustacea shall be cook e d under steam 
pressure until such time that the internal torn 
perature el the center most crustacean reaches 
aaa degrees 44 Temperature shall be measured 
with a maximum registering thermometer having 
a range el PQ 270 degrees 44- 

fb+ 44ae retort shall be se constructed as t© 
p e rmit a working pressure el at least 20 psig. 
Steam inlet a«4 venting shall provide a uniform 
aftd complet e distribution el steam. Venting 
shall be sufficient te- permit complete elimination 
el atf from the retort. Drains aft© vonts shall he 
located at least twa feet above mean bleb water. 
fa) al*e retorts shall be equipped with: 
f4-) aft enclosed, mercury filled, indicating 
thermometer with a range that wall include 
170 270 degrees 14 aft© locat e d w+tfr the 
bulb extending bate the heat chamber; 
(4) a» operating pressure indicator, at least 
threo inches m diamet e r, with a 30 es*g 
range, a»© located adjacent te the indi 
eating thermometer; 
fa+ a safety valve operational at 18 30 psig, 
locat e d i» the upper portion el the retort, 
protected from tampering. aa4 appropn 
ate fef operator's personal safety. 



6~9 



7:7 SORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



(4) Boilor must fa ef ouch capacity as to 
maintain 4£ to +9© psig during coolcing. Tfa 
stoam fee from the boiler to tfa retort shall fa 
at- least one fourth weh insid e diameter. A pros 
safe regulating valve, with a 10 30 psig rango is 

OU llUlliiJ -■ tt mrovi j rr siiuix rj^y luimuu cttt 1 1 iv a i vti hi 
1 1 nti fini-1 c la a 1 1 ". i iin.i 'i|iil ."««-> i-* r in 1 1 r*t ri i n c r ~i t *> l ~ i ii fi 1 1 1 f^ 

tJJt P CTrtTT Jl lUlx t^Q LTir LFIITJ T.TI IV I VJ HI III 1IIVIIV.T Ill LI 1 11 V 

diameter, if set adjacent to the retort, ef at least 
eee ieeh insido diameter, if adjacent. 

(e) Ovorhoad hoists shall fa equipped with- 

CTTTTBTT OTCgo ■ 

(f) Retort coo lung baskets shah 1 fa ef stainless 
steel ef oquivalont material, afa shall fa se 4e- 

-^ fw» ^^J --^ e * q ail^MJ : tj-lt- «-^»-j-» n,-\r r f i \ a m nirhi i BCflta aai 

SlE|JH?tT trS tTT IU1W1T rtTT I'l Ul 'VI UllAU II Ul'JUlil ..^.'l 1 1 VI 11 , 

ease ef handling, afa dumping afa satisfactory 
cloaning. 

(g) Nothing i» this Rul e shall fa se construed 
as barring aey other cooking proc e ss which fas 
boon found equally offoctivo afa which is ap- 
provod by the Division. 

Statutory Authority G.S. I30A-230. 

.0118 COOLING 

I j"\ ,--> J r (is-\ <-* fl 1 r* 4 *-> n j"* n ^^^^^^£ ^^^T^^^^^^^^ ^^^^^^^ tA^^ rati I f "j 

shall fa moved immediately to a protected area 
to fa aif cool e d to ambiont tomperaturo without 
being disturbed. Cooked Crustacea shall fa 
stor e d » original retort cooking basket. 

Statutory Authority G.S. I30A-230. 

.0119 PICKING AND PACKING 

(a) The picking afa packing operations shall 
fa conducted to a sanitary manner. When 
cook e d Crustacea moat is washed, it shall fa 
washod m oloan running wat e r from an- approved 
sourco. AH cook e d Crustac e a placed before a 
picker shall fa picked bofuro a Hew- supply is de- 
livorod. Crustacea meat shall fa placed under 
r e frigeration within two- hours after picking. 

(h) Repacking ef Crustacea moat which has 
boon picked ef process e d i» another plant shall 
»et fa allowed. 

' C J UliT nilirm e\ t if. i. V-» ii:it n t «-, ^ t.in j~i r i-* <t i. - 1 ■' n 1 t«« ■ > f \ jH 

IUI uici lull ic, rrr 1 I^Tttt tttttt II 1J/LK11 trr pmtTOrEBQQ 

moat shall fa prohibited. 
(4) Cans ef other containers fef packaging 
cooked Crustacea moat shall fa clean, sanitized, 

tightly closed ef waled after filling. 
(e) Packer's certificate number shall fa legibly 
impressed, ombossod, ef lithographed to ef e» 
the sides ef the containers to which Crustacea 
moat is packed, except when the fa becomes a» 
integral part ef the container during the coaling 

T1T"l ^ 1 ' I ' ' ' ll'' p i i pa b<m *"*"* -1 l ! W»."» r\ n t V-. ■ i 1 | ,-1 ■ n ■ ■ T-v-t ;-k r, w-i ri 

I-'* o wjj, ii iv liui 1 1 1 ' vi 1 1 1 u t r^p it? i 1 1 it^ i iti , i mitpp cttw 

addrous ef the f+ffe ef distributor shaH fa simi 



lafly mark e d e» the container hdr Plastic fags 
shall have the name afa address ef- the pack e r ef 

UIJU 1 C «-■• I "." I CTTTTT CTTTmOTTH^T rTT^TTr^^^T r^T TTTV r^-T^TT^^r 

permanently marked e» thorn (Hand stamping is 
unacceptable.). Contain e rs boaring a certificate 
number othor than that ef the respective plant 

^J^^^U rtitf l-» . ^ •ill.-ni.-iiil < n t^^^ n 1 --i r\ + I-. *i j'-t-i r~- 1-\ n ♦ ^i I ft OJE 
Ul lUn nui 1,'U U1JVJ tl DO 111 LI IV L'lUl 1 1 . I ^TJVTT IAJ I IIUU1UI 

shall fa permanently afa logibly idontifiod with- 
a code indicating date ef packing. 

(f} Only clean shipping barrels, boxes, afa 
containers shall fa usod. 

Statutory Authority G.S. J30A-230. 

.0120 FREEZING 

(a) Crustacea m e at fef frooaing shall fa frozen 
within 34 hours ef the tifae it is picked. 

ffa Storage ef froi'.on Crustacea moat shall fa 
at «»fe degrees £r ef lower temperaturos. 

Statutory Authority G.S. J30A-230. 

.0121 CRUSTACEA SCRAP DISPOSAL 

Scrap containers shall fa removed from tfa 
picking room as soon as they- afe fill e d, placed i» 
suitable protected storage, afa shall fa r e moved 
from tfa premises at least daily a«d disposed ef 
to a mann e r approvod ey tfa Division. AH scrap 
containers shall fa leak proof afa ef 
nonabsorbont materials afa shall fa thoroughly 
cleaned at l e ast daily. Othor solid wast e s shall 
fa stored afa dispos e d ef with sufficient fre- 
quency afa alse i» a mannor approvod hy tfa 
Division. 

Statutory Authority G.S. I30A-230. 

.0122 SINGLE-SERVICE CONTAINERS 

AH- single service contain e rs shall fa stored afa 
handled to a sanitary manner, afa wh e r e nocos 
sary, shall fa given bactericidal treatm e nt imm e 
diat e ly prior to filling afa adequately drained. 

Statutory Authority G.S. 130 A- 230. 

.0123 REFRIGERATION 

(a) Refrigeration rooms shall fa ef sanitary 
construction with ae imporvious floor, graded to 
drain quickly. 4-^fa rooms shall fa constructed 
se that they- wiH net receive drainag e from oth e r 
portions ef tfa plant. Floor drains shall eet fa 
conn e cted directly to a sower. 

fh} lee boxes, fef tfa pick e d product, shaH fa 
ef sanitary construction with ae impervious lift- 
ing afa have a» effective drain. 

fe) B*e refrigeration room ef ice fa* shall fa 
larg e enough afa constructed se that a fell day's 
production, with ieer eae fa convoniently stored 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



680 



PROPOSED RULES 



a«4 equipped with a thermometer located m the 
room ©f b&#r 

fkf lee shall fee manufactured » tfee plant ©f 
obtained from a» approved source. Packers, 
purchasing crushed iee-r shall secure k from deal 
t*f* who handle, crush aftk deliver k » a sanitary 
manner. 

fe} fee feift* shall have smooth impervious iee 
contact surfaces a»4 shall fee constructed aft4 1©- 
catod se- tfeat- tfee bottom i§ abov e tfee level ©I 4ie 
adjac e nt floor a«4 drams away from tfee unused 
ieer 

ffk Block tee shall fee properly stored te avoid 
contact with contaminated surfaces a«4 shall fee 
t ho ro uglily washed ©ft a» elevated metal stand 
©f grating, with a hose provided £©f this purpose, 
before k k> plac e d » tfee crushing machin e . A 
corrosion resistant container shall fee provided te 
catch tfee crushed tee falling from tfee crusher. 
( Whore tfee crusher is located » a protected por 
t+©» ©f tfee refrigeration room, tfei* container k> 
»©t- required.) 

fg) AH- facilities ami equipment employed » 
handling aft4 prepanng we £©f ttse shall fee used 
fof so- other purpose aF>4 shall fee clean e d e ach 
day tfee plant k> » operation. Shovels shall fee 
hung ©f stored k* a protected manner when He* 

ffek Where k is necessary to have iee k* the 
packing room a metal lined container ©f com 
partment ©f sanitary construction shall fee ©f©- 
vided fof tfee seie purpos e ©f stonng such iee 
manufactured k* tfee plant . purchased crush ieer 
©f block iee tfeat- has been crushed m tfee plant; 
except tfeat- clean barrels ©f boxes fo* shippmg 
Crustacea m&f fee used £©f tfe*s purpose. 

Statutory Authority G.S. I30A-230. 



unprotected surfac e ©f other oourco ©f contain 
ination. Employooo engaged m picking a«4 
packing operations shall rinse thoir hands, fefe 
lowing washing, i» a clean sanitizing solution 
containing at- least 445Q parts peF million el avail 
afele chlorin e ©f other equally offoctivo 
bactericid e . Fingernails sfea« fee short a«4 clean 

■ rill iirrLi'ilfl Cl^i^fai ' "" " ' ' I I 13 Q * i "!■ h ' I I ■ t r * T ^ ii 1 1 i I . ■ fM,'l.-in i-» 

©f pacldng. fe«se ©£ cloth wraps ©f cloth fingor 
e©ts shall net fee permitted. 

fe} Appropriat e hand washing signs 4jaH fee 
posted k% toilets ©f privies a«4 at- conspicuous 
places k% both picking rooms aj*4 at- tfee hand 
washing lavatories. 

ffk Pickers, packers, aad handlers ©£ unpiclcod 
cooked Crustacea ©f picked meat shall wear clean 
outer garments aftk aprons. Aprons sfewH covor 

1 1 l\J 1IU11L til 1U J1UI J tTl 1 1 IV 1_'\_'\J T . L-'U L' J i_Tl I RQ EEOCQ 
T^T^TITi rtTTvr vttT? iT^T^^ fTTTTT^ rT^TTTT t*TT r^^TT? TT^ TTil? 

elbow ©f covered with approved typo am* guards. 
Any type ©f protective clothing employing ruffles 

j^i^tl it- 1 1 f ~1 ■ 1 T~1 Till i t ] r T i ■ i t , i T-i ■ l 1 ^^^ \ i i \\ I ^^^ ^ ^ * r- ■ > t^ t~t I I fc ^' t < Q 
C^^^TT Cu ui^ l nib ^^X 1 1 1 d ^^^T^^^^^ t^j ^^^^^T C^j ^^^^T^^T ^^^^^^^^^^ 

^J^^^^l ^^^^t ^^^ ^ i ■ . L . J 

fgf Clean, individual, single serv ' ico, hand papor 
towels shall fee provided fof e ach picker te- «*e 
during picking operations. 

ffe) Employees shall aet- eat- food e* ase te- 
bacco » afty form » tfee packing »f picking 
rooms. 

Statutory Authority G.S. J30A-230. 

.0125 SUPERVISION 

¥fee owner ef manager shall either personally 
supervise ©f shall designate a» individual whos e 
principal duty shall fee to- supervise aftk fee Fe- 
sponsible fof tfee complianc e with the rules e£ 
tfeis Section. 



.0124 HEALTH AND CLEANLINESS OF 
PERSONNEL 

fa} Persons whil e affected with a disease » a 
communicable form ©f whil e a carrier ©£ such 
disease ©f whil e afflicted with boils, infected 
wounds, ©f an- acute respirator/ infection, shall 
fee e xcluded fro m tfee plant. 

ffef Daily observation ©f inquiries ©f employees 
shall fee made fey tfee managers ©f supervisors te- 
d e tect a»y j+g» ©f illness among employees. 

kH A report ^Tfei4^ fee made t© tfee local health 
authority when a» employee is known ©f s«§- 
pected ©f hai l ing a disease » a communicable 
form. 

(-4* Employees shall wash th e ir hands thor 
o uglily with warm water aftk soap, then dtp- them 
k* a» approved sanitizing solution before begin 
ning work aftk prior t© returning te- work after 
leaving working ar e as ©f after contact with a» 



Statutory Authority G.S. 130A-230. 

.0126 MICROBIOLOGICAL STANDARDS 

fa} Fresh cooked Crustacea m e at shall »©t- 
contain mor e than ^k Escherichia eeti MPN pet 
+kk grams, ©f hav e a standard plate count ©f 
mor e than 100,000 bacteria peF gram. 

ffe-> Pasteurized Crustacea meat shall contain Ft© 
Escherichia &&U ©f fecal conform. Samples ©f 
pasteurized Crustacea meat, taken within 34 
hours ©f processing, shall H©t- hav e a standard 
plate count ©f mor e than 3,000 bacteria peF gram. 

fek Crustac e a meat shall H©t- contain 

pathogenic organisms k> sufficient numbers te 
fee hazardous t© tfee public h e alth. 

f4) Crustac e a meat found H©t complying w-kfe 
tfee microbiological standards a& stated k% kt>: (fe}r 
»ftk fe+ ©f tfek Rule, F»ay fee deemed adulterated 
fev tfee Division. 



681 



7:7 NORTH CAROLINA REGISTER July I, 1992 



PROPOSED RULES 



Statutory Authority G.S. 130A-230. 



.0127 



PASTEURIZATION PROCESS 
CONTROLS - THERMOMETERS 

(a) Indicating and Recording Thermometers. 

be provided e» aii pastourizing oquipmont aft4 
Gon e as timo tomporatur e controllers. The bulbo 
ef both thermometers shall be located waste 
give a tf»e roprooontation ef the operating t e m 
poratur e ef the water bath. A representative ef 
the Division shall ch e ck the accuracy ef both 
thermometers as installed a»4 at least once each 
oporating ooaoon. The recording thermometer 
chart must be at least a 12 hour chart, aed at 
least 40 inches i» diamotor. 

(b) Protection ef Recording Thermometer. 
The recording thormomoter shall be installed se 
that it will be protected from vibration aed from 
otrilcing by loading operations ef plant traffic. 
The thermometer mechanism shall be located se 

OS I" T^W L'l t_T COT H-^J 11 UI11 1 1 T\7 1 Jl tl 1 V TTTTTT^T DXV fUlllll t, 

conditions. The thermometer ease shall ee* be 
open e d during the pastourizing cycle, except fof 
tomporatur e chock ef fof emergency ef repair, a 
record ef which shall be made. 
(e) Recording Thermomotor Temperature 
Range and Accuracy. The recording 

thormom etef shall have a range ef at least 
120 220 dogroos ft ft shall be accurate within 

ftl 1 1 f .--v*- TT1 mill' ft «-» J* ,-f, ^. rrun I ■ K.-itll ■ , i. u-A 1 A( I . t . ■ ■ »-«-. -\. 1 i- 

L' 1 LI B Ul rTTTTTTXTT U 1 IU DOEI W I ■ T7UTTTTTTT TTTT UV5J WO 

ft aft4 300 dogreoo ft The chart shall be scal e d 
at a maximum ef twe dogreoo ft intervals fo the 
rango ef 4-60 dogroos ft aed 300 dogroos ft 
(4) Indicating Thermomet e r Tomporature 
Rango aftd Accuracy. 44>e indicating 

thormom etef shall be a mercury thermometer 

^^i^J^ ^l ^^^^^^^^^^^^^^ *-fc *t j~1 J-^^^^^^^J^^^^^L^^ j > T ^^^^^^ ^^£ t > . i i t I i .. 

TTTTTT UJ 1 UIVU I Ul 1 T UJ 1U 1 1. 7.1 TJ I II ■ 11 1 1 T (-'I L'lUJ rTT rTTTTTTTTT 

ene degree ft between 4-60 dogreoo ft a«d 300 
dogrooo ft The thermomotor shall be protect e d 
against damage. 

(e) Recording Thermometer Timo Accuracy. 
The recording thormomoter shall be equipped 
w+tfe a spring op e rat e d ef electrically operated 
clock. The recorded elapsed time as indicated 
by the chart rotation shall net- oxcood the tfee 
elapsed time as shown by a» accurate watch. 

I Qfl flit 'll ITU' i'n'1 r-j l I i r\ r-w \ ri • V \ ■ 1 1 W. > p*Q1 I i . 1 , | ,"1 u iih 

pin* upon which fhe chart shall be affixed by 
puncturing the chart. 

ff} ftse ef the Recording Thermometer Chart . 
The pasteurization ««ft shall set be operated 
without a recording thermomotor chart i» place, 
the pe» fo contact with the chart , aftd an- inked 
r e cord being made ef the operating time 

^l^^l^i \ ni- «n ,Jn>fitii"it-l i~\ t ] 

J- T t_*IV. 1 TTTT mTTTT^CTTTTTTT CTT 1 



ef a thormom etef chart shall constitut e a vie- 

1 - 1 1 l / ) II A fiAin r-h 'i r*t ci^^^l J^A Ll^^^i ^^u; ^j^^J^ ^^^^^^= 

1U C lv~* l £ i j i i^^^T^P ^^^TC^^* ^^r^T^ra LJ V ^^^^^^* ^T^^T CTTCtt ^^t^^T^^j 

operations a«4 the oodo number »f date e£ each 
batch affixod te- the chart fof e ach paotourizing 
cyclo. A p e rmanent file &f the used thormomoter 
charts shall be maintained by the paotourigor et&4 
kept available fof inspection by the Division fof 
a p e riod &f e«e year. The following information 
shall be recorded within the confinoo e# the pen- 
marlrings after the pasteurization cycl e has boon 
completed: 

(+} Dat e e£ procosoing; 

(3^ Quantity &f each batch prooossod (pounds 

\J I III \J\X l UI iraTrrTTr LLI I*J Jl/.V ^Tx C^TTTTTTT^T^^^^^y 

(d+ Processor's cod e ef each pack; 

f4) If the past e urizer procossoo moat fof 

oomoono elser thon the packer's namo, 

address, im4 bconse e* certification num 

bef must be recorded; 
{$) Notation e£ mechanical ef power failure 

e* opening e4^ the r e cording thermometer 

ease fof adjustment e* repair during the 

pasteurizing cycle; 
{6} After the optimum tomporaturo has boon 

reached aft4 during the holding timo, the 

the tim e ef reading ohall be r e cord e d e» 
the chart; 
(44 Written signatur e ef the pasteurizer opor 

fg} -Pse ef a Constant Flow Steam Control 
Valve. A constant flow stoam control valv e is 
required if stoam is used as a oourco ef heat . 

(b} Water Bath. The wat e r bath shall be pro 
vid e d with effective agitation te maintain a efti- 
form temperature. 

Statutory Authority G.S. 1 30 A- 230. 

.0128 PREPARATION OF CRUSTACEA MEAT 

The preparation ef crustacoa m e at fof 
pasteurizing shall be fo accordance with the fef- 
lowing: 
fb) Preparation. Crustacea meat fof 

pasteurization ohall be prepared m compli 

aftee witb- oxioting Division regulations fof 

fresh meat. 
f3} Sealing ef Containers. The containers ef 

Crustacea meat shall be seal e d as quickly as 

possible aft e r the moat is pickod. 
(4+ Refrigeration. The contain e rs ef Crustac e a 

m e at shall be plac e d immediately under iee 

refrigeration. 

Statutory Authority G.S. 130A-230. 

.0129 PASTEURIZATION OF CRUSTACEA 
MEAT 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



6S2 



PROPOSED RULES 



Tfee pasteurization ©f crustacoa moat shall fee m 
complianc e w4*h the following: 

414 Pasteurizing Operation. Crustacoa m e at £©f 
pasteurization shall fee pasteurized within 34 
hours ©£ the time 4 4> piclcod. Tie mini 
mum pasteurization spooificationo shall fee 
the raising e£ the internal t e mp e rature ©f the 
contain e r ©f Crustacea moat te 4-S4 dogrooo 
44- afi4 holding at that tomporaturo ie* at 
least ©fte minuto at the goomotnc con tor ©f 
a container approved fey the Division; pro 
vided that nothing t» this definition shall fee 
construed as barring a»y other 
pasteurization process which has boon found 
e qually e ff e ctiv e a«4 which 4> approv e d fey 
the Division. Each set ©f pasteurizing 
equipment shall fee standardized se- that the 
above pasteurization treatment ea» fee ©fe- 

t'iir\ .1/1 11t^ ri'u tall T-i "iar g ti • 1 1 1 ^^^^rt /~i r\ T«l^ +1^^ 

^v^^^^^^^^T ^^^^^C ^^t^^T^^^^T^T^^T Tt^^T^T ^^^^^^^ ^^^T ^^^^7 ^^^^^ 

standardization report, a»4 his 

pasteurization proc e dur e shall fee performed 
m accordance with kv 
f44 Temperature Timo Requirements. 

Temperature time requir e m e nts shall fee 4e- 
tormined fof each water bath a»4 all oporat 
i»g conditions. Alteration ©f the equipment 
©f ift the staclring ©f contain e rs shall r e quir e 

t h ' 1 1 t li . i n r. -\ . ~ , ■ . Ii i «-."» r^^i r.i.tlnilri «-,-| i if^jT t ,-t |iT^^t 

the pasteurizing requirements 4* Paragraph 
(44 ©f th» ft«ler 

(44 Chilling. The containers ef meat shall fee 
chilled fey cooling te 444) degrees 44 within 
40 minutes t© allow refrigerated storag e 
within eee hour after processing. 

444 Refrigeration. Refrigerated storag e shall 
fee provided £©f the chilled Crustacea meat 
ae4 shall maintain a storage temperature at 
Bf below ^4 degrees 44 feet above 44 degrees 



Statutory Authority G.S. 1 30 A- 230. 

.0130 LABELING OF PASTEURIZED 
CRUSTACEA MEAT 

Labeling ©f past e uriz e d Crustac e a meat shall be 
m compliance svith the following: 

444> Designation ef Contents. The label used 
shall cl e arly identify the contents ef the 
contain e r as past e urized Crustac e a meat . 
Whenever the term "crab moat," "lobst e r 
meat," "shrimp" fe* 4s equivalent), appears 
©» the label, the word "pasteurized" shall 
be used 4* immediat e conjunction » typ e 
©4- equal promin e nc e . 

f34 Coding. Fach container shall be perma 
nontly ae4 legibly identified with a code 4t- 
dicating the batch aftd ^etf ©f proc e ssing. 



444 Rofrigoration. The words "Porishablo - 
Koop Under Rofrigoration," ©f the* e quiv 
alent, shall fee prominontly displayod ©ft the 

Statutory Authority G.S. 130A-230. 

.0131 SEVERABILITY 

4f asy provision ef th e s e Rules, ©f the applica 
tie» thereof te a»y peroon ee circumstanco, k> 
hek4 invalid, the remainder ©f the rulos, ©f the 
application ©f such provisions te- other persons 
©f circumstanc e s shell Ret- fee affoctod thereby. 

Statutory Authority G.S. J30A-230. 

.0132 APPEALS PROCEDURE 

Appeals shall fee conductod m accordance with 
G^.444T4 

Statutory Authority G.S. 130A-230. 

.0134 DEFINITIONS 

The following definitions shall apply through- 
out this Section: 

( 1) "Adulterated" means the following: 

(a) Any cooked Crustacea or Crustacea meat 
that have been picked, packed or repacked 
in a facility which has not been permitted 
bv the Division in accordance with these 
Rules; 

(b) .Any cooked Crustacea or Crustacea meat 
which exceed the bacteriological standards 
in Rule .0183 of this Section; 

(c) Any cooked Crustacea or Crustacea meat 
which are putrid or unfit for human con- 
sumption; 

(d) Any cooked Crustacea or Crustacea meat 
which have been exposed to any condition 
whereby it may have become contam- 
inated; or 

(e) Any cooked Crustacea which contain any 
added substance, unless the substance is 
approved by the Division, the United 
States Food and Drug Administration or 
the North Carolina Department of Agri- 
culture. 

(2) "Code date" means the date conspicuously 
placed on the container to indicate the date 
that the product was packed. 

(3) "Cook" means to prepare or treat 
Crustacea by heating. 

(4) "Crustacea meat" means the meat of crabs, 
lobster, shnmp or crayfish. 

(5) 'Division" means the Division of Envi- 



ronmental Health or its authorized agent. 



(6) "Food-contact surface" means the parts 
of equipment, including auxiliary - equip- 



683 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



ment, which may be in contact with the 
food being processed, or which may drain 
into the portion of equipment with which 
food is in contact. 

(7) 'Fresh crustacea" means a live, raw or 
frozen raw crab, lobster, shrimp or crayfish 
which shows no decomposition. 

(8) "Internal temperature" means the temper- 
ature of the product as opposed to the am- 
bient temperature. 

(9) "Misbranded" means the following: 

(a) Any container of cooked crustacea or 
crustacea meat which is not labeled with 
a valid identification number awarded by 
regulatory authority of the state or coun- 
try of origin of the cooked crustacea or 
crustacea meat; or 

(b) Any container of cooked crustacea or 
crustacea meat which is not labeled as re- 
quired by these Rules. 

(10) "Operating season" means the season of 
the year during which a crustacea product is 
processed. 

(1 1) "Pasteurization" means the process of 
heating every particle of crustacea meat in a 
hermetically-sealed 401 by 301 one pound 
container to a temperature of at least 185° 
F (85° C) and holding it continuously at or 
above this temperature for at least one min- 
ute in properly operated equipment ap- 
proved by the Division; provided that 
nothing in this definition shall be construed 
as barring any other pasteurization process 
which has been found equally effective and 
which is approved by the Division. 

(12) "Pasteurization date" means a code con- 
spicuously placed on the container to indi- 
cate the date that the product was 
pasteurized. 

(13) "Processing" means any of the following 
operations when earned out in conjunction 
with the cooking of crustacea or crustacea 
meat: receiving, refrigerating, air-cooling, 
picking, packing, repacking or pasteurizing. 

(14) "Repacker" means a facility which repacks 
cooked crustacea meat processed by a North 
Carolina certified crustacea facility into other 
containers. 

(15) "Responsible person" means the individ- 
ual present in a cooked crustacea facility 
who is the apparent supervisor of the cooked 
crustacea facility at the time of the in- 
spection. If no individual is the apparent 
supervisor, then any employee is the re- 
sponsible person. 

(16) "Sanitize" means the approved bactericidal 
treatment by a process which meets the 



temperature and chemical concentration 
levels in 15A NCAC 18A .2619. 

Statutory Authority G.S. I30A-230. 

.0135 PERMITS 

(a) No person shall operate a cooked crustacea 
facility without a permit issued by the Division. 

(b) No person shall operate a repacker facility 
without a repacker permit issued by the Division. 

(c) Application for a permit shall be submitted 
in writing on an application form available from 
the Division. 

(d) No permit shall be issued by the Division 
until an inspection shows that the facility and 
equipment comply with applicable rules of this 
Section. 

(e) A permit issued to one person is not trans- 
ferable to another person. 

(f) The permit shall be posted in a conspicuous 
place in the facility. All permits shall expire on 
March 31 of each year. 

(g) Plans and specifications for proposed new 
construction, expansion of operations or changes 
in operating processes shall be submitted to the 
Division for review and approval prior to begin- 
ning construction or placing equipment. 

(h) A permit may be revoked or suspended 
pursuant to G.S. 130A-23. 

(i) The owner or responsible person shall sign 
the completed inspection sheet to acknowledge 
receipt of the inspection sheet. 

Statutory Authority G.S. 130A-23; 130A-230. 

.0136 APPLICABILITY OF RULES 

The rules in this Section shall apply to the op- 
eration of all facilities and persons permitted in 
Rule .0135 of this Section and all other busi- 
nesses and persons that buy, sell, transport or 
ship cooked crustacea or crustacea meat. 



Statutory Authority G.S. I30A-230. 

.0137 GENERAL REQUIREMENTS FOR 
OPERATION 

(a) During the operating season the processing 
portion of the facility shall be used for no pur- 
pose other than the processing of cooked 
crustacea or crustacea meat. 



(b) Retail sales of cooked crustacea or 
crustacea meat shall not be made from any 
processing portion of the facility. 

(c) Accurate records of all sales shall be main- 



tained for the following cooked crustacea or 
crustacea meat products: 

(1) Fresh : 60 days. 

(2) Frozen - j_ year. 



7:7 NORTH CAROLINA REGISTER July I, 1992 



6S4 



PROPOSED RULES 



(3) Pasteurized - J_ year. 
Statutory Authority G.S. 130A-230. 

.0138 SUPERVISION 

(a) The owner or responsible person shall su- 
pervise the processing operation and be respon- 
sible for compliance with the rules of this 
Section. 

(b) No unauthorized persons shall be allowed 
in the facility during the periods of operation. 

(c) The owner or responsible person shall ob- 
serve employees daily to ensure compliance with 
Rule .0154 of this Section. 

Statutory Authority G.S. I30A-230. 

.0139 FACILITY CONSTRUCTION 

Cooked Crustacea facilities shall be sized and 
constructed to permit compliance with the oper- 
ational provisions of this Section. 

Statutory Authority G.S. 130 A- 230. 

.0140 FACILITY LOCATION 

A cooked Crustacea facility constructed after 
October ]_, 1992 shall be located so that it will 
not be subject to flooding. If the facility floors 
are flooded, processing shall be discontinued un- 
tiJ flood waters have receded and the facility and 
equipment are cleaned and sanitized. Any 
cooked Crustacea or Crustacea meat which may 
have been contaminated bv flood waters shall be 



deemed adulterated and disposed of in accord- 
ance with G.S. 13()A-21(c). 

Statutory Authority G.S. I30A-230. 



.0141 FLOORS 

Floors shall be of concrete or other equally 
i mper 



:rvious material^ constructed so that thev 



may be easily cleaned and shall be sloped so that 
water drains. 

Statutory Authority G.S. 130A-230. 

.0142 WALLS AND CEILINGS 

(a) Walls and ceilings shall be constructed of 
smooth. easily cleanable. non-corrosive, 
impervious material. 

(b) Insulation on cooked Crustacea cooler walls 
shall be covered to the ceiling with a smooth, 
easily cleanable, non-corrosive, impervious ma- 
terial. 

(c) Doors and windows shall be properly fitted 
and maintained in good repair. 

Statutory Authority G.S. 130 A- 230. 



.0143 LIGHTING 

(a) Natural or artificial lighting shall be pro- 
vided in all parts of the facility. Minimum 
lighting intensities shall be as follows: 

( 1) 50 foot-candles on working surfaces in the 
picking and packing rooms and areas. 

(2) 10 foot-candles measured at a height of 30 
inches above the floor throughout the rest 
of the processing portion of the facility. 

(b) Light bulbs within the processing portion 
of the facility shall be shatterproof or shielded to 
prevent product contamination in case of 
breakage. 

Statutory Authority G.S. 130A-230. 

.0144 VENTILATION 

All rooms and areas shall be ventilated to elim- 
inate odors and condensation. 



Statutory Authority G.S. 130A-230. 

.0145 INSECT CONTROL 

All outside openings shall be screened, provided 
with wind curtains or be provided with other 
methods to eliminate the entrance of insects. 
All screens shall be kept in good repair. All 
outside doors shall open outward and shall be 
self-closing. The use and storage of pesticides 
shall comply with all applicable State and Federal 
laws and rules. 



-j- Statutory Authority G.S. J30A-230. 



.0146 RODENT AND ANIMAL CONTROL 

Measures shall be taken to keep animals, fowl, 
rodents, and other vermin out of the facility. 
The storage and use of rodenticides shall comply 
with all applicable State and Federal laws and 



Statutory Authority G.S. 130A-230. 

.0147 PREMISES 

(a) Premises under the control of the owner 
shall be kept clean at all times. Waste materials, 
rubbish, other articles or litter shall not be per- 
mitted to accumulate on the premises. Other 
items shall be properly stored. 

(b) Measure shall be taken to prevent the 
harborage and breeding of insects, rodents and 
other vermin on premises. 

Statutory Authority G.S. 130A-230. 

.0148 WATER SUPPLY 

(a) The water supply used shall be in accord- 
ance with I5A NCAC 18A .1700. 



6S5 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



(b) A cooked Crustacea facility using a non- 
community water supply shall be listed with the 
Public Water Supply Section, Division of Envi- 
ronmental Health. 

(c) Water samples for bacteriological analysis 
shall be collected at least annually by the Divi- 
sion and submitted to the Laboratory Division 
of the Department or another laboratory' certified 
by the Department for analysis. 

(d) Cross-connections with unapproved water 
supplies are prohibited. Hot and cold running 
water under pressure shall be provided to food 
preparation, utensils and handwashing areas and 
any other areas in which water is required for 
cleaning. Running water under pressure shall be 
provided in sufficient quantity to carry out all 
food preparation, utensil washing, hand washing, 
cleaning and other water-using operations. 

Statutory Authority G.S. BOA- 230. 

.0149 ICE 

(a) Ice shall be obtained from a water supply 
approved by the Division pursuant to Rule .0148 
of this Section and shall be stored and handled 
in accordance with these Rules. 

(b) All equipment used in the handling of ice 
shall be used for no other purpose and shall be 
cleaned and sanitized at least once each day the 



facility is in operation. 

Statutory Authority G.S. BOA-230. 

.0150 PLUMBING 

(a) Plumbing fixtures shall be located to facili- 
tate the flow of processing activities and to pre- 
vent the splashing of water on food-contact 
surfaces or cooked Crustacea and Crustacea meat. 



M 


Fixtures 


, ducts and 


pipes 


shall not 


be 


sus- 


pended over \v 


orking areas. 








l£l 


Handwas 


h lavatories 


shall be located 


SO 


that 



the supervisor can readily observe that employees 
wash and sanitize their hands before beginning 
work and after each interruption. 

(d) Handwash lavatories shall be provided in 
the following locations: 

(1) Cooking area. 

(2) Packing room or area. 

(3) Toilet or lounge area. 

(4) Picking room. 

(e) At least one handwash lavatory shall be 
provided for even' 20 employees among the first 
100 employees and at least one handwash 
lavatory' shall be provided for every 25 employees 
in excess of the first 100 employees. 

(f) Additional lavatories required by Paragraph 
(e) of this Rule shall be located in the picking 
room. 



(g) A container shall be located near each 
handwash lavatory in the picking room and 
packing room or area to sanitize hands in a sol- 
ution containing at least 100 parts per million 
(ppm) of available chlorine or other equally ef- 
fective bactericide. A suitable testing method or 
equipment shall be available and regularly used 
to test chemical sanitizers to insure minimum 
prescribed strengths. 

(h) Soap and single service towels in protected 
dispensers, or other approved hand drying de- 
vices, shall be available near the handwash 
lavatories. 

(i) .All pre-cool rooms, picking rooms, packing 
rooms or areas, and cooking areas shall be pro- 
vided with hosebibs and wash down hoses. 
Storage racks shall be provided to keep the hoses 
elevated off the floor when not in use. 

(j) An automatically regulated hot-water sys- 
tem shall be provided to furnish a sufficient vol- 
ume of hot water with a temperature of at least 
130° F (54.5° C) to carry out all processing op- 
erations. 

(k) All handwash lavatories and sinks shall be 
equipped with mixing faucets. 

(1| A three-compartment sink with drainboards, 
large enough to wash the largest utensils used in 
the facility, shall be located in the picking room 
near the delivery shelf. One three-compartment 
sink, with drainboards, shall be provided for ev- 
ery 50 employees or fraction thereof. 

(m) The floor drains in coolers shall not be 
connected directly to a sewer in cooked Crustacea 
facilities constructed after October h 1992. 

Statutory Authority G.S. BOA-230. 

.0151 SEWAGE DISPOSAL 

/Ml sewage and other liquid wastes shall be dis- 
posed of in a public sewer system or in the ab- 
sence of a public sewer system, by an on-site 
method approved by the Division or the De- 
partment of Environment, Health, and Natural 
Resources. 

Statutory Authority G.S. BOA-230. 

.0152 TOILETS 

(a) Toilets shall be provided on the premises, 
(h) Toilet tissue shall he provided. 

(c) Toilet room doors shall not open directly 
into processing areas of the facility and shall be 
self-closing. 

(d) Privies shall not be allowed for any cooked 
Crustacea facility constructed after October _F 
1992. 

Statutory Authority G.S. BOA-230. 



7:7 NORTH CAROLINA REGISTER July I, 1992 



6S6 



PROPOSED RULES 



.0153 SOLID WASTE 

(a) Cooked Crustacea scrap and other 
putrescible wastes shall be removed from the 
premies at least daily. ( )ther solid wastes shall 
be removed from the premises at least weekly. 

(b) Scrap containers shall be removed from the 
picking room immediately after tilling and placed 
in storage areas approved by the Division. 

(c) Scrap containers shall be watertight, non- 
corrosive and cleaned at least daily. 

(d) Scrap containers shall be cleaned in an area 
approved by the Di vision. 

Statutory Authority G.S. J30A-230. 

.0154 PERSONAL HYGIENE 

(a) All employees shall wash their hands with 
soap and running water before beginning work 
and again after each interruption. Signs to this 
effect shall be posted in conspicuous places in the 
facility by the owner. 



(b) All persons handling cooked Crustacea or 
crustacea meat shall sanitize their hands before 
beginning work and again after each interruption. 

(c) All persons employed or engaged in the 
handling, picking or packing of cooked crustacea 
or crustacea meat shall wear clean, washable 
outer clothing. 

(d) Fmployees shall not eat food, drink nor use 
tobacco in any form in the areas where cooked 
crustacea or crustacea meat are stored, processed 
or handled. 

(e) Anv person known to be a carrier of any 
disease which can be transmitted through the 
handling of cooked crustacea or crustacea meat 
or who has an infected wound or open lesion on 
any exposed portion of the body shall be pro- 
hibited from handling cooked crustacea or 
crustacea meat. 

(f) Hair restraints shall be worn bv all employ- 
ees who handle cooked crustacea or crustacea 
meat. 

(g) The arms of personnel who pick or pack 
cooked crustacea or crustacea meat shall be bare 
to the elbow or covered with an arm guard ap- 
proved bv the Division. 

(h) Personnel who pick and pack cooked 
crustacea or crustacea meat shall have clean short 
fingernails, free from nail polish and shall not 
wear jewelry' other than easily cleanable rings. 
The use of absorbent wraps or absorbent finger 
cots shall not be permitted. 

Statutory Authority G.S. I30A-230. 

.0155 PERSONAL STORAGE 



Storage areas shall be provided for storing em- 
ployees' street clothing, aprons, gloves and per- 
sonal articles. 

Statutory Authority G.S. I30A-230. 

.0156 SUPPLY STORAGE 

Shipping containers, boxes and other supplies 
shall be stored in a storage room or area. The 
storage room or area shall be kept clean. 

Statutory Authority G.S. 130A-230. 

.0157 EQUIPMENT AND UTENSIL 
CONSTRUCTION 

All processing equipment and utensils shall be 
smooth, easily cleanable, durable and kept in 
good repair. The food-contact surfaces of 
equipment, utensils and processing machinery 
shall be easily accessible for cleaning, non-toxic, 
non-corrosive, non-absorbent and free of open 



seams. 



Statutory Authority G.S. 130A-230. 

.0158 FACILITY AND EQUIPMENT 
SANITATION 

(a) The walls and floors in the picking and 
packing areas shall be kept clean while operating 
and shall be sanitized at least daily or more often 
as necessary to prevent contamination. 

(b) All food-contact surfaces shall be washed, 
rinsed and sanitized prior to starting operation 
each day or more often as necessary to prevent 
contamination. 

(c) Reusable picking containers and knives 
shall be washed, nnsed and sanitized each time 
crustacea meat is delivered to the packing room. 

(d) Sanitizing methods are as follows: 

( 1) By steam in a steam chamber or box 
equipped with an indicating thermometer 
located in the coldest zone, bv exposure 
to a temperature of 1 70° F (77° C) for at 
least 15 minutes or to a temperature of 
200 a F (93° C) for at least five minutes. 

(2) By immersion for at least one minute in 
the third compartment in clean hot water 
at a temperature of at least 170° F (77° 
C). A thermometer accurate to + 3° F 
( + 1.5° C| shall be available to the com- 
partment. Where hot water is used for 
bactericidal treatment, a booster heater 
that maintains a water temperature of at 
least 170° F (77° C| in the third compart- 
ment at all times when utensils are being 
washed shall be provided. The heating 
device may he integral with the immersion 
compartment. 



687 



7:7 NORTH CAROLINA REGISTER July I, 1992 



PROPOSED RULES 



(4} 



(3) By immersion for at least one minute in, 
or exposure for at least one minute to a 
constant flow of, a solution containing 
not less than 100 ppm chlorine residual. 
Utensils and equipment which have to be 
washed in place will require washing, 
rinsing and sanitizing. 
By other equivalent products and proce- 
dures approved in 21 CFR 178.1010 
"Sanitizing solutions" from the "Food 
Service Sanitation Manual" published by 
the U.S. Food and Drug Administration. 
2\ CFR 178.1010 is hereby incorporated 
by reference including any subsequent 
amendments and editions. This material 
is available for inspection, and copies may 
be obtained at no cost, at the Shellfish 
Sanitation Branch, 3441 Arendell Street, 



P.O. Box 769, Morehead City, North 
Carolina 28557. A suitable testing 
method or equipment shall be available 
and regularly used to test chemical 
sanitizers to insure minimum prescribed 
strengths. 

Statutory Authority G.S. 130 A- 230. 

.0159 EQUIPMENT STORAGE 

Equipment and utensils which have been 
cleaned and sanitized shall be stored to protect 
against contamination. 

Statutory Authority G.S. 130A-230. 

.0160 SEPARATION OF OPERATIONS 

(a) Facility design shall provide for continuous 
flow of raw materials and product to prevent 
contamination by exposure to areas involved in 
earlier processing steps, refuse or other areas 
subject to contamination. 

(b) The following processes shall be carried out 
in separate rooms or areas: 

( 1) Raw crustacea receiving or refrigeration. 

(2) Crustacea cooking. 

(3) Cooked crustacea air-cool. 

(4) Cooked crustacea refrigeration. 

(5) Picking. " 

(6) Packing. 

(7) Picked crustacea meat refrigeration. 

(8) Pasteurizing. 

(9) Machine picking. 

(10) Other processes when carried out in 
conjunction with the cooking of crustacea 
or crustacea meat. 

Statutory Authority G.S. I30A-230. 

.0161 RAW CRUSTACEA RECEIVING AND 



REFRIGERATION 

(a) Only fresh crustacea shall be accepted for 
processing. 

(b) Crustacea shall be cooked within two hours 
of receipt at the facility or be placed in a refrig- 
erated area maintaining a temperature of 50° I 

( 10° C) or below. 



(21 



Statutory Authority G.S. I30A-230. 

.0162 CRUSTACEA COOKING 

(a) The cooking area or room shall be under a 
roof located between the area for receiving raw 
crustacea and the air-cool room and shall be 
vented to assure the removal of steam. 

(b) Crustacea shall be cooked in accordance 
with the following: 

( 1) Crabs shall be cooked under steam pres- 
sure until the internal temperature of the 
center-most crab reaches 235° P ( 1 12.8° 
C). Temperature shall be measured with 
an accurate, indicating thermometer hav- 
ing a range of 170-270° F (77-132° C). 
Other crustacea shall be cooked until the 
internal temperature of the center-most 
crustacean reaches 180° F (83° C) and is 
held at this temperature for one minute. 
Temperature shall be measured with an 
accurate, indicating thermometer. 

Crayfish shall be culled and cleaned prior 
to cooking. 

Nothing in this Rule shall prohibit am 
other cooking process which has been 
found equally effective and approved by 
the Division. 

(c) The retort shall be constructed to permit a 
working pressure of at least 20 pounds per square 
inch (psig). Steam inlet and venting shall provide 
a uniform and complete distnbution of steam. 
Venting shall be sufficient to permit complete 
elimination of air from the retort. Drains and 
vents shall be located at least two feet above 
mean high tide. 



[3} 



(d) Ihe retorts shall be equipped with: 

( 1) An accurate, indicating thermometer with 
a range that will include 170-270° F 
(77-132° C) and located with the sensor 
extending into the heat chamber. 

(2) An operating pressure indicator, at least 
three inches in diameter, with a 0-30 psig 
range and located adjacent to the indicat- 
ing thermometer. 

(3) A safety valve operational at 18-30 psig, 
located in the upper portion of the retort, 
protected from tampering and designed to 
prevent injury to the operator. 

(e) The boiler shall be of such capacity as to 
maintain 45 to 100 psig during cooking. The 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



688 



PROPOSED RULES 



steam line from the boiler to the retort shall be (e) If provided, bactericidal solutions at picking 



solution or an equivalent bactericidal solution 



at least one and one-fourth inch mside diameter. tables shall be maintained at 100 ppm chlorine 

I f ) Overhead hoists shall be equipped with 
chain bass or other means of preventing foreign 
material from falling onto the cooked product. 

(2) Retort cooking baskets shall be of stainless 



steel or equally impervious, non-corrosive and 
durable material, and shall be designed to allow 
for equal steam disbursement, ease of handling, 
dumping and cleaning. 

(h) All construction or replacement of retorts 
after October _h 1992 shall be 'now-through" 
tvpe and opening directly into the air-cool room 
or a protected passageway into the air-cool room. 

Statutory Authority G.S. I30A-230. 

.0163 COOKED CRUSTACEA AIR-COOL 

fa) Cooked Crustacea, after removal from the 
retort, shall be moved immediately to the cooked 
Crustacea air cool area to be air cooled to ambi- 
without 



ent temperature 
Cooked Crustacea 
cooking basket. 



being disturbed. 



shall be stored in onginal 



(b) The construction and arrangement of the 
air-cool room shall be designed to provide pro- 
tection from contamination of the cooked 
Crustacea. The air-cool room shall open directly 
into the cooked Crustacea cooler or other pro- 
tected area. 

Statutory Authority G.S. 130A-230. 

.0164 COOKED CRUSTACEA REFRIGERATION 

(a) The cooked Crustacea cooler shall be large 
enough to store all cooked Crustacea and main- 



tain a minimum temperature of 4jT F (4.4 J C). 
The cooler shall open directly into the picking 
room or mto a clean, enclosed area leading into 
the picking room. 

(b) Cooked Crustacea shall be stored at a tem- 
perature between 3F F (0.5 ; C) and 40° F (4.4° 
C) ambient air temperature if not lmmediatel 
processed. The cooler shall be equipped with an 
accurate, operating thermometer. 

Statutory Authority G.S. 130A-230. 

.0165 COOKED CRUSTACEA PICKING 

(a) The picking operation shall be conducted 
in a manner to prevent contamination. 

(b) All cooked Crustacea shall be picked before 
a new supply is delivered to the picking table. 

(c) Picked Crustacea meat shall be delivered to 
the packing room at least every 90 minutes or 
upon the accumulation of five pounds per picker. 

I'd) Paper towels used at the picking table shall 
be discarded after initial use. 



A suitable testing method or equipment shall be 
available and used to test chemical sanitizers to 
insure minimum prescribed strengths. 

(T) Handles of picking knives shall not be cov- 
ered with any material. 

(g) Picking of Crustacea cooked at any facility 



other than the original cooking facility, is pro- 
hibited. Mechanical picking of claws may be 
approved under written authority from the Divi- 
sion if it complies with these Rules. 

Statutory Authority G.S. 130A-230. 

.0166 PACKING 

(a) Crustacea meat shall be packed in a con- 
tamer, iced and cooled to an internal temperature 
of 40 1 F (4.4 C C) or below within two hours of 
receipt in the packing room. 

(b) The storage of ice in the packing room shall 
be in an easily cleanable, non-corrosive, non- 
toxic container. 



(c) Blending or combining of any of the fol- 
lowing shall be prohibited: 

( 1 ) Fresh Crustacea meat. 

(2) Frozen Crustacea meat. 

(3) Pasteurized Crustacea meat. 



(4) Crustacea meat packed in another facility, 
fd) Clean shipping containers shall be provided 
for storing and shipping of packed Crustacea 
meat. 

(e) The return of overage to a picker shall be 
prohibited. 

(f) Washing of picked Crustacea meat shall be 
under running potable water. The Crustacea 
meat shall be thoroughly drained prior to pack- 
ing. 

(g) Anv substance added to cooked Crustacea 
or Crustacea meat shall be approved and labeled 
according to Federal and State rules and regu- 
lations. 

(h) No unauthorized personnel shall be allowed 
in the packing room or area. 

Statutory Authority G.S. 130A-230. 

.0167 PICKED CRUSTACEA MEAT 
REFRIGERATION 

fa) The refrigeration room or ice box shall be 
of sufficient size so that a full day's production, 
with ice, can be properly stored and shall be 
equipped with an accurate, operating 
thermometer. 

(b) Ice boxes shall be easily cleanable, non- 
corrosive, non-toxic with an impervious lining 
and a drain. 



6S9 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



(c) Picked Crustacea meat shall be stored be- Cooked Crustacea and Crustacea meat shall be 



tween 33° F (0.5° C) and 40° F (4.4° C). 
Statutory Authority G.S. I30A-230. 

.0168 DELIVERY WINDOW OR SHELF 

A delivery window or a non-corrosive shelf shall 
be" provided between the picking room and 
packing room or area. The delivery window 
shall be equipped with a shelf completely covered 
with smooth, non-corrosive metal or other ma- 
terial approved by the Division and sloped to 
drain towards the picking room. 

Statutory Authority G.S. I30A-230. 

.0169 SINGLE-SERVICE CONTAINERS 

(a) Single- service containers used for packing 
cooked Crustacea and Crustacea meat shall be 
made from approved materials. 

(b) Containers shall not be reused for packing 
cooked Crustacea and Crustacea meat. 

(c) No person shall use containers bearing a 
permit number other than the number assigned 
to the facility. 

(d) Each container shall be legibly impressed, 
embossed or lithographed with the name and 
address of the original packer, repacker or dis- 
tributor. The original packer's or repacker's 
permit number preceded by the state abbrevi- 
ation shall be legibly impressed, embossed or 
lithographed on each container. 

(e) Each container shall be permanently and 
legibly identified with a code date. 

(f) All containers shall be stored and handled 
in accordance with these Rules, sanitized by a 
procedure as stated in Rule .0158 of this Section 
and drained prior to filling. 

(g) .All containers shall be sealed so that 
tampering can be easily detected. 

Statutory Authority G.S. I30A-230. 

.0170 FREEZING 

(a) If Crustacea meat is to be frozen, it shall be 
frozen within 48 hours of packing and the code 
date shall be followed by the letter "F.' 

(b) Frozen Crustacea meat shall not be thawed 
prior to sale. 

(c[ Frozen Crustacea meat shall be stored at a 
temperature of 0°_ F (-18° C) or less. 

(d) The frozen storage rooms shall be equipped 
with an accurate, operating thermometer. 

Statutory Authority G.S. I30A-230. 

.0171 SHIPPING 



shipped between 33° F (0.5° C) and 40° F (4.4° 
C). Frozen Crustacea products shall be shipped 
at 0° F (-18° C) or below. 

Statutory Authority G.S. 130A-230. 

.0172 WHOLE CRUSTACEA OR CRUSTACEA 
PRODUCTS 

Whole Crustacea, claws or any other Crustacea 
products shall be prepared, packaged and labeled 
in accordance with the rules of this Section. 

Statutory Authority G.S. 130A-230. 

.0173 COOKED CLAW SHIPPING 
CONDITIONS 

(a) Vehicles used to transport cooked claws 
shall be mechanically refrigerated, enclosed, 
tightly constructed, kept clean and equipped with 
an operating thermometer. 

(b) Cooked crab claws shall be stored and 
transported between 33° ? (0.5° C) and 40° F 
(4.4° C) ambient air temperature. 

(c) All vehicles shall be approved by the Divi- 
sion prior to use. 

(d) Cooked claw shipping containers shall be 
marked for intended use, cleaned and sanitized 
prior to use and approved by the Division. 

Statutory Authority G.S. I30A-230. 

.0174 REPACKING 

(a) Crustacea meat for repacking shall be 
processed in a North Carolina certified Crustacea 
facility in compliance with Rules .0134 through 
.0183 of this Section. 

(b) The repacker shall have a written agreement 
with each facility which provides Crustacea meat 
for repacking. The Division shall be provided a 
copy of this written agreement. 

(c) Facilities which provide Crustacea meat for 
repacking shall he approved by the Division. 

(d) Crustacea meat for repacking shall be re- 
packed within 48 hours of the original packing. 

(e) Crustacea meat for repacking shall be in 
compliance with the following: 

( 1) Packed in original shipping container or 
in a single service container labeled for 
"Repacking Only": 
Identified with original packer's certif- 



(Jl 



ication number and code date; and 



(3) Iced and cooled to 40° F (4.4° C) or below 
within two hours of receipt in packing 
room. 
(f) Shipping of Crustacea meat for repacking 
shall be in compliance with the following: 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



690 



PROPOSED RULES 



(1) Vehicles used to transport Crustacea meat 
for repacking shall be mechanically refrig- 
cr.iKxl, enclosed, tightly constructed and 
equipped with an operating thermometer. 

(2 1 Crustacea meat for repacking shall be 
stored and transported between 33 3 
(0.5 : C) and 40 : F (4.4- C). 

(3) The interior shipping compartment of the 
yehicle shall be cleaned prior to shipment 
of Crustacea meat for repacking. 

(4) "I he shipment shall consist only of proc- 
essed and packaged Crustacea meat. 

(5) Vehicle ; shall be approved as part of the 
facility certification. 

(g) Repacking of Crustacea meat 



(l) Records shall be kept for all purchases of 
Crustacea meat for repacking and sales of re- 
packed meat for one year. 

Statutory Authority G.S. 130A-230. 

.0175 PASTEURIZATION PROCESS 

CONTROLS - THERMOMETERS 

fa) All pasteurizing equipment shall have a 
time-temperature recording thermometer with a 
temperature controller (combined or separately) 
and an indicating thermometer. The 

thermometers shall be located to give a true rep- 
resentation of the operating temperature of the 
water bath. The recording thermometer chart 



Li! 

(21 

01 



Crustacea meat shall not exceed 45° F sha ^ k| at least a 12-hour chart and at least 10 
(7. 1 : C) during the repacking process. 



inches in diameter. 



Repacking shall be conducted separately 
bv time or space from the routine 
Crustacea meat picking and packing proc- 
ess. 

The food contact surfaces and utensils 
utilized in the repacking process shall be 
cleaned and sanitized prior to repacking 
and thereafter on 30 minute intervals dur- 
ing repacking. 

Repacked Crustacea meat shall be main- 
tained between 33J F (H.5 : Q and 40_ F 
(4.4 : C). 



(5) Blending or combining of any of the fol- 
lowing shall be prohibited: 

(A) Fresh Crustacea meat. 

(B) Frozen Crustacea meat. 
(Cl Pasteurized Crustacea meat. 



(D) Crustacea meat packed in another fa- 
cility. 

(6) Crustacea meat shall not be repacked more 
than one time. 

(7) All empty containers shall be rendered 
unusable. 



(h) Fabeling of repacked Crustacea meat: 
( 1 ) Fach container shall be legibly embossed. 



impressed or lithographed with the re- 
packer s or the distributor's name and ad- 
dres 
(2) Fach container shall be legibly embossed, 
impressed or lithographed with the re- 
packer s certification number followed bv 
the letters "RP." 



<Jl 



Fach container shall be permanently and 
legiblv identified with a code indicating 
the repack date. 



:pac 



(4) Fach container shall be sealed so that 
tampering can be easily detected, 
(i) Repacked Crustacea meat shall meet 
bacteriological and contamination standards in 
Rule .HI S3 of this Section. 



(b) The recording thermometer shall be in- 
stalled so that it will be protected from vibration 
and from striking bv loading operations or facility 
traffic . 1 he thermometer mechanism shall be 
protected from moisture under prevailing condi- 
tions. The thermometer case shall not be opened 
during the pasteurizing cycle, except for temper- 
ature check or for emergency or repair. A record 
shall e made when the thermometer case has 
been opened. 

(c) The recording thermometer shall have a 
range of at least 1 20-220 F (4S.9-1U4.4 ; C). It 
shall be accurate within plus or minus 1" F be- 



tween 160 : F (IV C) and 2UCP F (93_ Cj. The 
chart shall be scaled at a maximum of 2 1 F in- 



160= F (7T Ci and 200° 



tervals in the range of 
C). 



F (93' 

(di The indicating thermometer _ 

thermometer with an accuracy and readability of 

lus or minus 1 between 160 D F (71 3 C) and 



shall be a 



200' F (93' C). The thermometer shall be 
protected against damage. 

The recording thermometer shall be 
equipped with a spring-operated or electricall\ 
operated clock. "I he recorded elapsed time as 
indicated bv the chart rotation shall not exceed 
the true elapsed time as shown bv an accurate 
watch. The rotating chart support shall be pro- 



vided with pins upon which the chart shall be 
affixed bv puncturing the chart. 

(f| The pasteurization unit shall not be oper- 
ated without a recording thermometer chart in 
place, the pen in contact with the chart and an 
inked record being made of the operating time- 
temperature evcle Anv indication ot falsification 
of a thermometer chart shall constitute a vio- 
lation. A permanent tile of the used 
thermometer charts shall be maintained bv the 
pasteurizer and kept available tor inspection bv 
the Division for a period of one year. The fol- 
lowing information shall be recorded within the 



691 



7:7 NORTH CAROLINA REGISTER July I, 1992 



PROPOSED RULES 



confines of the pen markings after the 
pasteurization cycle has been completed: 

(1) Date of pasteurization. 

(2) Quantity of each batch pasteurized 
(pounds of Crustacea meat or number and 
size of containers). 

(3) Processor's code of each pack. 

(4) If the pasteurizer processes Crustacea meat 
for someone else, then the packer's name, 
address and permit number must be re- 
corded. A copy of the recording chart 
shall be provided to the owner of the 
crustacea meat. 

(5) Notation of mechanical or power failure 
or opening of the recording thermometer 
case for adjustment or repair during the 
pasteurizing cycle. 

(6) After the optimum temperature in the 
water bath has been reached and during 
the holding time, the reading of the indi- 
cating thermometer and the time of read- 
ing shall be recorded on the chart. 

(7) Signature of the pasteurizer operator. 

(g) A constant flow steam control valve is re- 
quired, if steam is used as a source of heat. 

(h) The water bath shall be provided with ef- 
fective agitation to maintain a uniform temper- 
ature. 

Statutory Authority G.S. I30A-230. 

.0176 PREPARATION OF CRUSTACEA MEAT 
FOR PASTEURIZATION 

The preparation of crustacea meat for 
pasteurization shall be in compliance with the 
following: 

(1) Crustacea meat shall be prepared in com- 
pliance with Rules .0134 through .0183 of 
this Section. 

(2) The containers of crustacea meat shall be 
sealed as quickly as possible after the 
crustacea meat is picked. 

(3) The sealed container of crustacea meat shall 
be placed immediately in ice and refrigerated 
until pasteurized. 

Statutory Authority G.S. 130A-230. 

.0177 PASTEURIZATION OF CRUSTACEA 
MEAT 

The pasteurization of crustacea meat shall be in 
compliance with the following: 

(1) Crustacea meat for pasteurization shall be 
pasteurized within 48 hours of the time it is 
picked. The minimum pasteurization spec- 
ifications shall be the raising of the internal 
temperature of the container of crustacea 
meat to 185° F (85^ C] and holding at that 



temperature for at least one minute at the 
geometric center of a container. Each set 
of pasteurizing equipment shall be stand- 
ardized so that the minimum pasteurization 
procedure in this Subparagraph can be ob- 
tained. The pasteurization procedure shall 
be performed in accordance with the stand- 
ardization report. This process shall also be 
posted adjacent to the pasteurization vat. 
The pasteurizer shall keep on file the stand- 
ardization report and shall provide the Divi- 
sion a copy of such report. 

(2) Alteration of the equipment or loading of 
containers shall require the procedure be re- 
standardized. 

(3) The containers of crustacea meat shall be 
cooled to 502 H (10° C) or below within 
three hours. 

(4) Refrigerated storage shall be provided for 
the cooled crustacea meat and shall maintain 
a storage temperature at or below 36° i 
(2.2° C) but above 32° F (0° C). 

Statutory Authority G.S. 130A-230. 

.0178 LABELING OF PASTEURIZED 
CRUSTACEA MEAT 

Labeling of pasteurized crustacea meat shall be 
in compliance with the following: 

( 1) The label used shall clearly identify the 
contents of the container as pasteurized 
crustacea meat. 

(2) Hach container shall be permanently and 
legiblv identified with a code indicating the 
batch and day of processing. 

(3) The words "Perishable- Keep Under Re- 
frigeration", or equivalent, shall be promi- 
nently displayed on the container. 

(4) The original packer's or repacker's permit 
number preceded by the state abbreviation 
shall be legibly impressed, embossed or 
lithographed on each container. Bach con- 
tainer shall be legibly impressed, embossed 
or lithographed with the name and address 
of the original packer, repacker or distribu- 
tor. 

Statutory Authority G.S. 130A-230. 

.0179 INTERFACILITY PASTEURIZATION 
PROCEDURES 

No person shall initiate intcrfacility 
pasteurization of crustacea meat without prior 
written approval by the Division. Intcrfacility 
pasteurization of crustacea meat shall be in con- 
junction with the following: 

( 1) Crustacea meat shall be packed, labeled and 
refrigerated in compliance with Rules .0134 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



692 



PROPOSED RULES 



through .0183 of this Section. Records shall 
be maintained to identify each batch of 
Crustacea meat pasteurized. 

(2) Crustacea meat shall be shipped in an en- 
closed, easily cleanable vehicle at a temper- 
ature between 33' F (0.5° C) and 40 ; F (4.4' 

CI 

(3) Crustacea meat shall be pasteurized in 

compliance with Rules .0176 through .0178 
of this Section. The pasteurizxr shall pro- 



vide a copy of each pasteurization chart to 
the original packer. 

Statutory Authority G.S. 1 30.4-230. 

.0180 RECALL PROCEDURE 

Each owner of a cooked Crustacea or Crustacea 
meat facility or repacker facihtv shall keep on tile 
a wntten product recall procedure. A copy of 
this recall procedure shall be provided to the Di- 
vision. 

Statutory Authority G.S. J30A-230. 

.0181 SAMPLING AND TESTING 

Samples of cooked Crustacea or Crustacea meat 
mav be taken and examined by the Division at 
any time or place. Samples of cooked Crustacea 
or Crustacea meat shall be furnished by the owner 
or operator of facilities, trucks, carriers, stores, 
restaurants and other places where cooked 
Crustacea or Crustacea meat are sold. 

Statutory Authority G.S. 130A-230. 

.0182 EMBARGO OR DISPOSAL OF COOKED 
CRUSTACEA OR CRUSTACEA MEAT 

(a) When it has been determined by the Divi- 



sion that cooked Crustacea or Crustacea meat 
have not been stored, transported, handled, 



cooked, picked, packed or offered for sale in 
compliance with this Section, the cooked 
Crustacea or Crustacea meat shall be deemed 
adulterated. 



(b) Cooked Crustacea or Crustacea meat pre- 
pared for sale to the public determined to be 
adulterated or misbranded, shall be subject to 
embargo or disposal bv the Division in accord- 
ance with G.S. 13Q.A-21(c). The Di vision mav 
embargo, condemn, destroy or otherwise dispose 
of all cooked Crustacea or Crustacea meat found 
to be adulterated or misbranded. 

Statutory Authority G.S. I30A-2I. 

.0183 BACTERIOLOGICAL AND 

CONTAMINATION STANDARDS 

(a) Cooked Crustacea or Crustacea meat shall 
not exceed Escherichia coli Most Probable 



Number (MPN) of 36 per 100 grams of sample 
or exceed a standard plate count of 100.000 per 
gram. 

(b) Pasteurized Crustacea meat shall contain no 
Escherichia coli or fecal coliform. Samples of 
pasteurized Crustacea meat, taken within 24 
hours of pasteurizing, shall not have a standard 
plate count of more than 3,000 per gram. 

(c) Cooked Crustacea or Crustacea meat shall 
not contain pathogenic organisms in sufficient 
numbers to be hazardous to the public health. 

(d) Cooked Crustacea or Crustacea meat shall 
not be contaminated by any other substance 
which renders it unsafe for human consumption. 

(e) Cooked Crustacea or Crustacea meat found 
not complying with the standards as stated in 
Paragraph (a), (b), [cj or (dj of this Rule may 
be deemed adulterated by the Division. 

Statutory Authority G.S. I30A-230. 

****************** 



iVotiee is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for 
Health Services intends to amend rule(s) cited as 
15 A NCAC 19 A .0201 - .0202 and adopt rule(s) 
cited as 15A NCAC 19 A .0206 - .0207. 

1 he proposed effective date of this action is Oc- 
tober 1, 1992. 

1 he public hearing will be conducted at the fol- 
lowing times, dates and locations: 

July 21, 1992 

7:30 p.m. 

New Bern High School 

(Lecture Room! 

4200 A cademic Drive 

(offHwy. 17 South) 

New Bern, NC 

July 22, 1992 

1:30 p.m. 

Archives & History Bldg 

(First Floor Auditorium) 

109 E. Jones Street 

Raleigh, NC 

July 27, 1992 

7:30 p.m. 

Elevated Lecture Room 

Simpson Administration Bldg 

A sheville- Buncombe Technical College 



693 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



340 Victoria Road 
Ashevilk, NC 

July 28. 1992 

7:30 p.m. 

Conference Center 

Charlotte Mecklenburg Government Center 

600 E. 4th Street 

Charlotte, NC 

J\easons for Proposed Actions: These proposed 
rules address the issue of HIV and hepatitis B 
transmission from health care workers to patients. 
They were developed in response to recommen- 
dations made by a panel of North Carolina pro- 
fessionals knowledgeable about infectious diseases, 
podiatrists, and nurses. The U.S. Congress has 
required that each state adopt the CDC guidelines 
on this topic or an equivalent policy or lose all 
federal public health funding. These proposed 
rules address infection control in general and pro- 
vide for case-by-case review of HIV and hepatitis 
B infected health care workers who perform or 
assist in surgical and dental invasive procedures 
and for appropriate notification of patients. 

(comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or may be submitted to: 
Communicable Disease Control Section, P. O. 
Box 27687, Raleigh, NC 27602-0629 with a copy 
to John Barkley, Department of Justice, P. O. Box 
629, Raleigh, NC 27602-0629, (919) 733-4618. 
If you desire to speak at the public hearing, notify 
John Barkley at least 3 days prior to the public 
hearing. Oral presentation lengths shall be limited 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or address proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL INTER- 
ESTED AND POTENTIALLY AFFECTED PER- 
SONS, GROUPS, BUSINESSES, 
ASSOCIATIONS, INSTITUTIONS, OR AGEN- 
CIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO THE COMMISSION FOR HEALTH 
SERVICES THROUGH THE PUBLIC HEARING 
AND COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALU PRO- 
VISIONS OF THE PROPOSED RULES. THE 
COMMISSION MAY MAKE CHANGES TO THE 
RLLES AT THE COMMISSION MEETING IF 



THE CHANGES 
1508-21.2(0- 



COMPLY WITH G.S. 



CHAPTER 19 - HEALTH: EPIDEMIOLOGY 

SUBCHAPTER 19A - COMMUNICABLE 
DISEASE CONTROL 

SECTION .0200 - CONTROL MEASURES FOR 
COMMUNICABLE DISEASES 

.0201 CONTROL MEASURES - GENERAU 

(a) Except as provided in Rules .0202 - .0209 
of this Section, the recommendations and guide- 
lines for testing, diagnosis, treatment, follow-up, 
and prevention of transmission for each disease 
and condition specified by the American Public 
Health Association in its publication, Control of 
Communicable Diseases in Man shall be the re- 
quired control measures. Control of 
Communicable Diseases in Man is hereby incor- 
porated by reference including subsequent 
amendments and editions. Copies of this publi- 
cation are available from the American Public 
Health Association, Department JE, 1015 15th 
Street, N.W., Washington, DC 20005 for a cost 
of fifteen dollars ($15.00) each plus three dollars 
($3.00) shipping and handling. A copy is avail- 
able for inspection in the Communicable Disease 
Control Section, Cooper Memorial Health 
Building, 225 N. McDowell Street, Raleigh, 
North Carolina 27611. 

(b) In interpreting and implementing the spe- 
cific control measures adopted in Paragraph (a) 
of this Rule, and in devising control measures for 
outbreaks designated by the State Health Direc- 
tor and for communicable diseases and condi- 
tions for which a specific control measure is not 
provided by this Rule, the following principles 
shall be used: 

( 1 ) control measures shall be those which can 
reasonably be expected to decrease the 
risk of transmission and which are con- 
sistent with recent scientific and public 
health information; 

(2) for diseases or conditions transmitted by 
the airborne route, the control measures 
shall require physical isolation for the du- 
ration of infectivity; 

(3) for diseases or conditions transmitted by 
the fecal-oral route, the control measures 
shall require exclusions from situations in 
which transmission can be reasonably ex- 
pected to occur, such as work as a paid 
or voluntary food handler or attendance 
or work in a day care center for the dura- 
tion of infectivity; 

(4) for diseases or conditions transmitted by 
sexual or the blood-borne route, control 



7:7 NORTH CAROLINA REGISTER July I, 1992 



694 



PROPOSED RULES 



measures shall require prohibition of do- 
nation of blood, tissue, organs, or semen, 
needle-sharing, and sexual contact in a 
manner likely to result in transmission for 
the duration of infectivity. 

(c) Persons with congenital rubella syndrome, 
tuberculosis, and carriers of Salmonella typhi and 
hepatitis B who change residence to a different 
local health department jurisdiction shall notify 
the local health director in both jurisdictions. 

(d) Isolation and quarantine orders for 
communicable diseases and communicable con- 
ditions for which control measures have been es- 
tablished shall require compliance with 
applicable control measures and shall state pen- 
alties for failure to comply. These isolation and 
quarantine orders may be no more restrictive 
than the applicable control measures. 

fe} Health eaf© workers, including emergency 
rcsponders a**d- funeral service personnel, shall 
follow blood a«4 body fluid procautiono with all 
patients. 

/ 1 I \ 1 1 finmn m nnl iir^^ t .-v tMlrli^l it-.i \ -\ i i m i i r~t ,1,-in 

^T/ ? TTT CTrnTTTTICTTT B3W l\J UU1II.IIJ1L' 1 1 LX1 1 1UJ I J1V 1 1 r 

(*» medical ef other settings) must be disposed 
»f » accordance with 44A NCAC 44S aftef use 
&f sterilised prior te- rouso. 

(§)■ (e) An individual enrolled in an 
epidemiologic or clinical study shall not be re- 
quired to meet the provisions of 15A NCAC 19A 
.0201 - .0209 whuch conflict with the study pro- 
tocol if: 

(1) the protocol is approved for this purpose 
by the State Health Director because of 
the scientific and public health value of 
the study, and 

(2) the individual fully participates in and 
completes the study. 

Statutory' Authority G.S. BOA- 135; BOA- 1 44. 

.0202 CONTROL MEASLRES - HIV 

The following are the control measures for the 
Acquired Immune Deficiency Syndrome (AIDS) 
and Human Immunodeficiency Virus (HIV) in- 
fection: 
( 1 ) Infected persons shall: 

(a) refrain from sexual intercourse unless 
condoms are used; exercise caution when 
using condoms due to possible condom 
failure; 

(b) not share needles or syringes; 

(c) not donate or sell blood, plasma, platelets, 
other blood products, semen, ova, tissues, 
organs, or breast milk; 

(d) have a skin test for tuberculosis; 

(e) notify future sexual intercourse partners 
of the infection; if the time of initial in- 
fection is known, notify persons who have 



(2) 
(a) 



(b) 



(c) 
(d) 



(3) 



been sexual intercourse and needle part- 
ners since the date of infection; and, if the 
date of initial infection is unknown, notify 
persons who have been sexual intercourse 
and needle partners for the previous year. 
The attending physician shall: 
give the control measures in Paragraph (1) 
of this Rule to infected patients, in ac- 
cordance with 15A NCAC 19A .0210; 

If the attending physician knows the 
identity of the spouse of an HIV-infected 
patient and has not, with the consent of 
the infected patient, notified and coun- 
seled the spouse appropriately, the physi- 
cian shall list the spouse on a form 
provided by the Division of Epidemiology 
and shall mail the form to the Division; 
the Division will undertake to counsel the 
spouse; the attending physician's respon- 
sibility to notify exposed and potentially 
exposed persons is satisfied by fulfilling 
the requirements of Subparagraph (2)(a) 
and (b) of this Rule; 

advise infected persons concerning proper 
clean-up of blood and other body fluids; 
advise infected persons concerning the risk 
of perinatal transmission and transmission 
by breastfeeding. 

The attending physician of a child who is 
infected with HIV and who may pose a sig- 
nificant risk of transmission in the school or 
day care setting because of open, oozing 
wounds or because of behavioral abnor- 
malities such as biting shall notify the local 
health director. The local health director 
shall consult with the attending physician 
and investigate the circumstances. 
(a) If the child is in school or scheduled for 
admission and the local health director 
determines that there may be a significant 
risk of transmission, the local health di- 
rector shall consult with an interdiscipli- 
nary committee, which shall include 
appropriate school personnel, a medical 
expert, and the child's parent or guardian 
to assist in the investigation and determi- 
nation of risk. The local health director 
shall notify the superintendent or private 
school director of the need to appoint 
such an interdisciplinary committee, 
(i) If the superintendent or private school 
director establishes such a committee 
within three days of notification, the local 
health director shall consult with this 
committee. 
(ii) If the superintendent or private school 
director does not establish such a com- 
mittee within three days of notification, 



695 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



the local health director shall establish 
such a committee. 

(b) If the child is in school or scheduled for 
admission and the local health director 
determines, after consultation with the 
committee, that a significant risk of trans- 
mission exists, the local health director 
shall: 

(i) notify the parents; 

(ii) notify the committee; 

(hi) assist the committee in determining 
whether an adjustment can be made to the 
student's school program to eliminate sig- 
nificant risks of transmission; 

(iv) determine if an alternative educational 
setting is necessary to protect the public 
health; 

(v) instruct the superintendent or private 
school director concerning appropriate 
protective measures to be implemented in 
the alternative educational setting devel- 
oped by appropriate school personnel; 
and 

(vi) consult with the superintendent or pri- 
vate school director to determine which 
school personnel directly involved with 
the child need to be notified of the HIV 
infection in order to prevent transmission 
and ensure that these persons are in- 
structed regarding the necessity for pro- 
tecting confidentiality. 

(c) If the child is in day care and the local 
health director determines that there is a 
significant risk of transmission, the local 
health director shall notify the parents that 
the child must be placed in an alternate 
child care setting that eliminates the sig- 
nificant risk of transmission. 

(4) When health care workers or other persons 
have a needlestick or nonsexual non-intact 
skin or mucous membrane exposure to 
blood or body fluids that poses a significant 
risk of HIV transmission, the following shall 
apply: 
(a) When the source person is known: 

(i) The attending physician or occupational 
health care provider responsible for the 
exposed person, if other than the attend- 
ing physician of the person whose blood 
or body fluids is the source of the expo- 
sure, shall notify the attending physician 
of the source that an exposure has oc- 
curred. The attending physician of the 
source person shall discuss the exposure 
with the source and shall test the source 
for HIV infection unless the source is al- 
ready known to be infected. The attend- 
ing physician of the exposed person shall 



be notified of the infection status of the 
source, 
(ii) The attending physician of the exposed 
person shall inform the exposed person 
about the infection status of the source, 
offer testing for HIV infection as soon as 
possible after exposure and at reasonable 
intervals up to one year to determine 
whether transmission occurred, and, if the 
source person was HIV infected, give the 
exposed person the control measures 
listed in Subparagraphs (l)(a) through (c) 
of this Rule. The attending physician of 
the exposed person shall instruct the ex- 
posed person regarding the necessity for 
protecting confidentiality. 

(b) When the source person is unknown, the 
attending physician of the exposed person 
shall inform the exposed person of the risk 
of transmission and offer testing for HIV 
infection as soon as possible after expo- 
sure and at reasonable intervals up to one 
year to determine whether transmission 
occurred. 

(c) A health care facility may release the name 
of the attending physician of a source 
person upon request of the attending 
physician of an exposed person. 

(5) The attending physician shall notify the 
local health director when the physician, in 
good faith, has reasonable cause to suspect 
a patient infected with HIV is not following 
or cannot follow control measures and is 
thereby causing a significant risk of trans- 
mission. Any other person may notify the 
local health director when the person, in 
good faith, has reasonable cause to suspect 
a person infected with HIV is not following 
control measures and is thereby causing a 
significant risk of transmission. 

(6) When the local health director is notified 
pursuant to Paragraph (5) of this Rule, of a 
person who is mentally ill or mentally re- 
tarded, the local health director shall confer 
with the attending mental health physician 
or appropriate mental health authority and 
the physician who notified the local health 
director to develop an appropriate plan to 
prevent transmission. 

(7) The Director of Health Services of the 
North Carolina Department of Correction 
and the prison facility administrator shall be 
notified when any person confined in a state 
prison is determined to be infected with 
HIV. If the prison facility administrator, in 
consultation with the Director of Health 
Services, determines that a confined HIV 
infected person is not following or cannot 



7:7 NORTH CAROLINA REGISTER July I, 1992 



696 



PROPOSED RULES 



follow prescribed control measures, thereby 
presenting a significant risk of HIV trans- 
mission, the administrator and the Director 
shall develop and implement jointly a plan 
to prevent transmission, including making 
appropriate recommendations to the unit 
housing classification committee. 

(8) The local health director shall ensure that 
the health plan for local jails include educa- 
tion of jail staff and prisoners about HIV, 
how it is transmitted, and how to avoid ac- 
quiring or transmitting this infection. 

£9) H e alth safe workers with HIV infection 
who havo secondary infections e* open s4a» 
lesions which would place patients at- ftsk- 
shall set- provid e direct patient care. Oth 
erwise, these control m e asur e s de set- re- 

I- -i l l i »■ fc «-. h . - t *-* ,~*4 | j-t r-\ ^ ^^i T * ~- ■ *• \ ] i I t \ ~\' j ■ ■ . * ^^X r ^ * r .. . \ T > l 

CrTTTT^ It .'I i IvTil'F!..' 11 1 1 1 IV TTTTTTpTtirT' CT I ' V 1 OCT !I" 

with HIV infection. 

(9) (40) Local health departments shall provide 
testing for HIV infection with individual pre- 
and post-test counseling at no charge to the 
patient. Third party payors may only be 
billed for HIV counseling and testing when 
such services are provided as a part of family 
planning and maternal and child health ser- 
vices. By August 1, 1991, the State Health 
Director shall designate a minimum of 16 
local health departments to provide anony- 
mous testing. Beginning September 1, 1991, 
only cases of confirmed HIV infection iden- 
tified by anonymous tests conducted at local 
health departments designated as anony- 
mous testing sites pursuant to this Subpara- 
graph shall be reported in accordance with 
15A NCAC 19A .0102(a)(3). All other 
cases of confirmed HIV infection shall be 
reported in accordance with 15A NCAC 
19A .0102(a)(1) and (2). Effective Septem- 
ber 1, 1994, anonymous testing shall be dis- 
continued and all cases of confirmed HIV 
infection shall be reported in accordance 
with 15A NCAC 19A .0102(a)(1) and (2). 

( 10) (44) Appropriate counseling for HIV test- 
ing shall include individualized pre- and 
post-test counseling which provides risk as- 
sessment, risk reduction guidelines, appro- 
priate referrals for medical and psychosocial 
services, and, when the person tested is de- 
termined to be infected with HIV, control 
measures. 

(11) (44* A person charged with an offense that 
involves nonconsensual vaginal, anal, or oral 
intercourse, or that involves vaginal, anal, 
or oral intercourse with a child 12 years old 
or less shall be tested for HIV infection if: 

(a) probable cause has been found or an 
indictment has been issued; 



(b) 



(c) 



the victim notifies the local or state health 
director and requests information con- 
cerning the HIV status of the defendant; 
and 

the local or state health director determines 
that the alleged sexual contact involved in 
the offense would pose a significant risk 
of transmission of HIV if the defendant 
were HIV infected. If in custody of the 
Department of Correction, the person 
shall be tested by the Department of 
Correction and if not in custody, the per- 
son shall be tested by the local health de- 
partment. The Department of Correction 
shall inform the local health director of all 
such test results. The local health director 
shall inform the victim of the results of the 
test, counsel the victim appropriately, and 
instruct the victim regarding the necessity 
for protecting confidentiality. 

( 12) (44) A local health department or the De- 
partment may release information regarding 
an infected person pursuant to G.S. 
130A- 143(3) only when the local health de- 
partment or the Department has provided 
direct medical care to the infected person 
and refers the person to or consults with the 
health care provider to whom the informa- 
tion is released. 

(13) (44) Notwithstanding Rule .0201(d) of this 
Section, a local or state health director may 
require, as a part of an isolation order issued 
in accordance with G.S. 130A-145, compli- 
ance with a plan to assist the individual to 
comply with control measures. The plan 
shall be designed to meet the specific needs 
of the individual and may include one or 
more of the following available and appro- 
priate services: 

(a) substance abuse counseling and treatment; 
mental health counseling and treatment; 
and 

education and counseling sessions about 
HIV, HIV transmission, and behavior 
change required to prevent transmission. 

( 14) (444 The Division of Epidemiology shall 
conduct a partner notification program to 
assist in the notification and counseling of 
partners of HIV infected persons. All part- 
ner identifying information obtained as a 
part of the partner notification program shall 
be destroyed within two years. 

Statutory Authority G.S. 130A-133; J30A-/35; 
130A-144; J30A-/45; 130A-148(h). 



(b) 
(c) 



.0206 INFECTION CONTROL 
CARE SETTINGS 



HEALTH 



6W 



7:7 NORTH CAROLINA REGISTER July I, 1992 



PROPOSED RULES 



(a) The following definitions shall apply 
throughout this Rule: 

(1) "Health care organization" means hospi- 
tal; clinic; physician, dentist, podiatrist, or 
chiropractic office; home health agency; 
nursing home; local health department; 
mental health agency; hospice; 
ambulatory surgical center; urgent care 
center; emergency room; or any other 
health care organization that provides 
clinical care. 

(2) "Invasive procedure" means entry into 
tissues, cavities, or organs or repair of 
traumatic injuries. The term includes but 
is not limited to the use of needles to 
puncture skin, vaginal and cesarean deliv- 
eries, surgery, and dental procedures dur- 
ing which bleeding occurs or the potential 
for bleeding exists. 

(b) Health care workers, emergency responders, 
and funeral service personnel shall follow blood 
and body fluid precautions with all patients. 

(c) Health care workers who have open skin 
leasions which would place patients at risk for 
transmission of HIV or HBV if the health care 
worker were infected or who have infections sec- 
ondary to HIV infection that pose a risk to pa- 
tients shall not provide direct patient care so long 
as the conditions persist. 

(d) All equipment used to puncture skin in 
medical or other settings must be disposed of in 
accordance with 15A NCAC 13B after use or 
sterilized prior to reuse. 

(e) In order to prevent transmission of HIV 
and hepatitis B from health care workers to pa- 
tients, each health care organization that per- 



forms invasive procedures shall implement a 
written infection control policy by July J^ 1993. 
The health care organization shall ensure that 
health care workers in its employ are trained in 
the principles of infection control and the prac- 
tices required by the policy; require and monitor 
compliance with the policy; and update the pol- 
icy as needed to prevent transmission of HIV and 
hepatitis B from health care workers to patients. 
The health care organization shall designate a 
staff member to direct these activities. By Janu- 
ary l^ 1994, the designated staff member in each 
health care organization shall have successfully 
completed a course in infection control approved 
by the Department. The course shall address: 

( 1) Epidemiologic principles of infectious dis- 
ease: 

(2) Principles and practice of asepsis; 

(3) Sterlization, disinfection, and sanitation; 

(4) Universal blood and body fluid prec- 
autions; 



(5) Engineering controls to reduce the risk of 
sharp injuries; 

(6) Disposal of sharps; and 

(7) Techniques which reduce the risk of sharp 
injuries to health care workers. 

(f) The infection control policy required by this 
Rule shall address the following components that 
are necessary to prevent transmission of HIV and 
hepatitis B from infected health care workers to 
patients: 

( I) Sterilization and disinfection, including a 
schedule for maintenance and 
microbiologic monitoring of equipment; 
the policy shall require documentation of 
maintenance and monitoring; 
Sanitation of rooms and equipment, in- 
cluding cleaning procedures, agents, and 



ill 

(21 
iil 



schedules; 

Accessibility of infection control devices 
and supplies; 

Procedures to be followed in implement- 
jng 15A NCAC 19A .0202(4) and 
.0203(b)(3) when a health care provider 
or a patient has an exposure to blood or 
other body fluids of another person in a 
manner that poses a significant nsk of 
transmission of HIV or hepatitis B. 



Statutory Authority G.S. BOA- 144; BOA- 145. 

.0207 HIV AND HEPATITIS B INFECTED 
HEALTH CARE WORKERS 

(a) The following definitions shall apply 
throughout this Rule: 



in 



m 



"Surgical invasive procedure" means sur- 
gery performed using general, regional, or 
local anesthesia. The term does not in- 
clude injections, placement of central or 
peripheral lines, and endoscopic proce- 
dures that do not require incisions. 
"Dental invasive procedure" means any 
dental procedure during which bleeding 
occurs or the potential for bleeding exists, 
(b) All health care workers who perform sur- 
gical or dental invasive procedures or vaginal de- 
liveries and who know themselves to be infected 
with HIV or hepatitis B shall notify the State 
Health Director. Health care workers who assist 
in these procedures in a manner that may result 
in exposure of patients to their blood and who 
know themselves to be infected with HIV or 
hepatitis B shall also notify the State Health Di- 
rector. The notification shall be made in writing 
to the Chief, Communicable Disease Control 
Section, P.O. Box 276S7, Raleigh. N.C. 
27611-7687. 



(c) 'I Tie State Health Director shall investigate 
the practice of the infected health care worker 



7:7 NORTH CAROLINA REGISTER July I, 1992 



69 S 



PROPOSED RULES 



and the risk of transmission to patients. The in- 
vestigation may include review of pertinent med- 
ical and work records and consultation with 
health care professionals who may have infor- 
mation necessary' to evaluate the clinicaJ condi- 



tion or practice of the infected health care 
worker. The State Health Director shall protect 
the confidentiality of the infected health care 
worker and may disclose the worker's infection 
status only when necessary to obtain vital mfor- 
mation. 



(d) If the State Health Director determines that 
there may be a significant risk of transmission of 
HIV or hepatitis B to patients, the State Health 
Director shall appoint an expert panel to evaluate 
the risk of transmission to patients, and review 
the practice, skills, and clinical condition of the 
infected health care worker, as well as the nature 
of invasive procedures performed and techniques 
used. Pach expert panel shall include an infec- 
tious disease specialist, and infection control ex- 
pert, a person who practices the same specialty 
as the infected health care worker and, if the 



health care worker is a licensed professional, a 
member of the appropriate licensure board. The 
panel may include other experts. 

(e) The expert panel shall review information 
collected bv the State Health Director and may 
request that the State Health Director obtain ad- 
ditional information as needed. The State Health 
Director shall not reveal to the panel the identity 
of the infected health care worker. The panel 
shall make recommendations to the State Health 
Director that address the following: 



(11 



[2J 



(3) 



Restrictions that are necessary to prevent 
transmission from the infected health care 
worker to patients; 

Identification of patients that have been 
exposed to a significant risk of trans- 
mission of HIV or hepatitis B; and 
Periodic review of the clinical condition 
and practice of the infected health care 
worker, 
(f) If. prior to receipt of the recommendations 
of the expert panel, the State Health Director 
determines that immediate practice restrictions 
are necessary to prevent an imminent threat to 
the public health, the State Health Director shall 
issue an isolation order pursuant to G.S. 
130A-145. The isolation order shall require ces- 
sation or modification of some or all surgical or 
dental invasive procedures or vaginal deliveries to 
the extent necessary to prevent an imminent 
threat to the public health. This isolation order 
shall remain in effect until an isolation order is 
issued pursuant to Paragraph (g) of this Rule or 
until the State Health Director determines the 



imminent threat to the public health no longer 
exists. 

(g) After consideration of the recommendations 
of the expert panel, the State Health Director 
shall issue an isolation order pursuant to G.S. 
130A-145. The isolation order shall require any 
health care worker who is allowed to continue 
performing surgical or dental invasive procedures 
or vaginal deliveries to, within a time period 
specified by the State Health Director, success- 
fully complete a course in infection control pro- 
cedures approved by the Department of 
Environment. Health, and Natural Resources, 
Communicable Disease Control Section, in ac- 
cordance with 15A NCAC 19A .0206(g). The 
isolation order shall require practice restrictions, 
such as cessation or modification of some or all 
surgical or dental invasive procedures or vaginal 
deliveries, to the extent necessary to prevent a 
significant risk of transmission of HI\" or 
hepatitis B to patients. The isolation order shall 
prohibit the performance of procedures that can- 
not be modified to avoid a significant risk of 
r^r^T transmission. If the State Health Director deter- 
mines that there has been a significant risk of 



transmission of HIV or hepatitis B to a patient, 
the State Health Director shall notify the patient 
or require in the isolation order that the health 
care worker notify the patient. 

(h) The State Health Director shall request the 
assistance of one or more health care profes- 
sionals to obtain information needed to period- 
ically review the clinical condition and practice 
of the infected health care worker who performs 
or assists in surgical or dental invasive procedures 
or vaginal deliveries. 

(i) An infected health care worker who has 
been evaluated by the State Health Director shall 
notify the State Health Director prior to a change 
in practice involving surgical or dental invasive 
procedures or vaginal deliveries. The infected 
health care worker shall not make the proposed 
change without approval from the State Health 
Director. If the State Health Director makes a 
determination in accordance with Paragraphs (c) 
and (d) of this Rule that there is a significant risk 
of transmission of HIV or hepatitis B to patients, 
the State Health Director shall appoint an expert 
panel. Otherwise, the State Health Director -hall 
notify- the health care worker that he or she may 
make the proposed change in practice. 

(j) If practice restrictions are imposed on a li- 
censed health care worker, a copy of the isolation 
order shall be provided to the appropriate 
licensure board. The State Health Director shall 
report violations of the isolation order to the ap- 
propriate licensure board. The licensure board 
shall report to the State Health Director anv in- 



699 



7:7 NORTH CAROLINA REGISTER July I 1992 



PROPOSED RULES 



formation about the infected health care worker (c) The officer who is scheduled to conduct the 



that may be relevant to the risk of transmission 
of HIV or hepatitis B to patients. 

Statutory Authority G.S. 130A-144; 130 A- 145. 

TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 



iV otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Electrolysis Examiners intends to adopt rule(s) 
cited as 21 NCAC 19 .0102. 

1 he proposed effective date of this action is Oc- 
tober 1, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on July 20, 1992 at the Office of the North 
Carolina Real Estate Commission, 1313 Navaho 
Drive, Raleigh, NC 27609. 

lXeason for Proposed Action: It is necessary to 
inform the public of the Board's requirements for 
the calling, holding, and conducting of meetings. 

C_^ omment Procedures: The record of hearing 
will be open for receipt of written comments from 
July 1, 1992 through July 31, 1992. Written 
comments may be either submitted at the hearing 
or delivered to the Board at its mailing address 
(c/o Patricia Holland, 205 Westview Place, High 
Point, North Carolina 27260). Anyone wishing 
to speak at the hearing should notify Charlene 
Taylor in writing at the Board's mailing address 
and requests should be received no later than July 
19, 1992. Anyone whose written request to speak 
is not received by July 19, 1992, may not be able 
to speak. 

CHAPTER 19 - BOARD OF ELECTROLYSIS 
EXAMINERS 

SECTION .0100 - GENERAL PROVISIONS 

.0102 MEETINGS 

(a) The Board shall hold two regular meetings 
each year in the months of January and July on 
call of the Chairman, or, if the Chairman is una- 
ble for anv reason to call the meeting, the Vice- 
chairman or the Treasurer in that order. Special 
meetings of the Board may be called at any time 
by the Chairman or any two board members. 

(b) The Chairman shall conduct aH meetings; 



meeting shall prepare an agenda for the meeting, 
(d) The Board shall set aside time at its regular 
meetings to hear members of the public who 
wish to speak to the Board. If time permits, the 
Board may also allow members of the public to 
speak at special meetings. Anyone who wishes 
to speak concerning an item on the agenda shall 
notify the presiding officer before the meeting is 
called to order. Anyone who wishes to speak 
concerning an item that is not otherwise sched- 
uled to be on the agenda shall, at least 72 hours 
before the meeting, contact the scheduled presid- 
ing officer to request that the item be included. 
The request must include the identity of the 
maker and the nature of the item and must be in 
writing unless the maker can show to the satis- 
faction of the scheduled presiding officer that it 
was not reasonably possible to provide a written 
request. Anyone who speaks to the Board at a 
regular meeting under the provisions of this Par- 
agraph shall be allowed a time period of five 
minutes, except that the presiding officer may 
further limit time if several persons have asked to 
speak. The presiding officer may limit time as 
needed at special meetings. At any meeting, the 
presiding officer may require groups to appoint 
a representative to speak for members of the 
group on an issue. Although members of the 
Board may ask specific questions of those 
speaking, the time allotted pursuant to this Par- 
agraph shall not be used either to debate the rel- 
ative merits of any proposal or to examine 
members of the Board. 



Statutory Authority G.S. 88A-5. 



in the absence of the Chairman, the Vice- 



chairman or the Treasurer in that order shall 
conduct the meeting. 



****************** 



iV otice is hereby given in accordance with G.S. 
150B-2I.2 that the North Carolina Board of 
Nursing intends to amend rule(s) cited as 21 
NCAC 36 .0/09, .0223; and adopt rule(s) cited 
as 21 NCAC 36 .0325. 

1 he proposed effective date of this action is Oc- 
tober 1. 1992. 

1 he public hearing will be conducted at 2:00 
p.m. on July 31, 1992 at the North Carolina Board 
of Nursing Office, 3724 National Drive, Suite 201 , 
Raleigh. NC 27612. 

lXeason for Proposed Actions: These Rules are 
being proposed for adoption or amendment to 



7:7 NORTH CAROLINA REGISTER July I, 1992 



700 



PROPOSED RULES 



clarify, strengthen and incorporate adopted poli- 
cies. 



Cc 



omtnent Procedures: Any person wishing to 
present oral testimony relevant to proposed rules 
may register at the door before the hearing begins 
and present hearing officer with a written copy of 
the testimony. Written statements may be sub- 
mitted by August 1 , 1992 to the North Carolina 
Board of Nursing, P.O. Box 2129, Raleigh, NC 
27602. 

CHAPTER 36 - BOARD OF NURSING 

SECTION .0100 - GENERAL PROVISIONS 

.0109 SELECTION AND QUALIFICATIONS 
OF NURSE MEMBERS 

(a) Vacancies in nurse member positions on the 
Board that are scheduled to occur during the next 
year shall be announced in the December issue 
of the North Carolina Board of Nursing "Bulle- 
tin", which shall be mailed to the address on re- 
cord for each North Carolina currently licensed 
nurse on December 1. The "Bulletin" shall in- 
clude a petition form for nominating a nurse to 
the Board and information on filing the petition 
with the Board. 

(b) Each petition shall be checked with the re- 
cords of the Board to validate that the nominee 
and each petitioner hold a current North 
Carolina license to practice nursing. If the 
nominee is found to be not currently licensed, the 
petition shall be declared invalid. If any 
petitioners are found to be not currently licensed 
and this finding decreases the number of 
petitioners to less than ten, the petition shall be 
declared invalid. 

(c) On a form provided by the Board, each 
nominee shall indicate the category- for which 
nominee is seeking election, shall attest to meet- 
ing the qualifications specified in G.S. 
90- 171.21(d) and shall provide written permission 
to be listed on the ballot. The form must be re- 
turned on or before April 15. 

(d) The majority of employment income of 
registered nurse members of the Board, must be 
earned by holding positions of primary responsi- 
bility as specified in G.S. 90- 171.21(d). The fol- 
lowing definitions apply in determining 
qualifications for registered nurse categories of 
membership: 

(1) Nurse Educator includes any nurse who 
teaches in or directs a basic or graduate 
nursing program; or who teaches in or di- 
rects a continuing education or staff de- 
velopment program for nurses. 



(2) Hospital is defined as any facility which 
has an organized medical staff and which 
is designed, used, and primarily operated 
to provide health care, diagnostic and 
therapeutic services, and continuous 
nursing to inpatients. 

(3) Hospital Nursing Service Director » in- 
cludes any nurse wbe whose primary po- 
sition in a hospital setting requires 
licensure as a Registered Nurse and whose 
pnmar\' responsibility is the chief execu- 
tive officer for the planning, delivers' and 
evaluation of nursing oorvioo. care. 

(4) Employed by a hoopital Hospital nurse in- 

cludes any nurse omployod by whose pri- 
mary position in a hospital setting 
requires licensure as a Registered Nurse, 
and whose primary responsibility include 
the administration, supervision or plan- 
ning delivery and evaluation of nursing 
care, or nursing staff development. 

(5) Employed by a physician Physician's office 

nurse includes any nurse e mployed by 
whose primary position in a phyoician 
physician's or group of physicians licensed 
te- practice m e dicine » North Carolina 
a«4 e ngaged » private practice, physi- 
cians' office, requires licensure as a Regis- 
tered Nurse and whose primary 
responsibilities include the administration, 
supervision or planning, delivery and 
evaluation of nursing care, or nursing staff 
development. 

(6) Employ e d by skilled ef intermediate eaf» 

facility Long Term Care Nurse includes 
any nurse employed by a long term whose 
primary position in a nursing facility 
(skilled or intermediate) as defined in 10 
NCAC 3C .1902(23) and K) NCAC 3H 
.0108(22), requires licensure as a Regis- 
tered Nurse, and whose primary responsi- 
bility-, include administration, sjjj^ervision 
or planning, delivery and evaluation of 
nursing care or nursing staff development. 

(7) Registered nurse approved to perform 
medical acts includes any nurse who is U^ 
censed as a Registered Nurse and is ap- 
proved for practice in North Carolina as 
a Nurse Practitioner or Certified Nurse 
Midwife. 

(8) Community health nurse includes any 
nurse who functions a* a genorulist es 
specialist m areas including, btrt- ft©* foft- 
itt*4 tor public h e alth, student h e alth, m- 
cupational health w community mental 
health. whose prim an' position in a 
public health or community health setting 
(e.g. student health center, occupational 



701 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



health center, home care, mental health 
clinic, correctional institution, health de- 
partment, community health center or 
clinic) requires licensure as a Registered 
Nurse and whose primary responsibilities 
include administration, supervision or 
planning, delivery and evaluation of nurs- 
ing care or nursing staff development. 

(e) The majority of the income of Licensed 
Practical Nurse members of the Board must be 
earned by holding positions that require licensure 
as a Licensed Practical Nurse and whose primary 
responsibilities include participation in the as- 
sessment, planning, delivery and evaluation of 
nursing care, 

(f) l^f The term "nursing practice" when used 
in determining qualifications for registered or 
practical nurse categories of membership, means 
any position for which the holder of the position 
is required to hold a current license to practice 
nursing. 

(g) (f) A nominee shall be listed in only one 
category on the ballot. 

(h) fg} If there is no nomination in one of the 
registered nurse categories, all registered nurses 
who have been duly nominated and qualified 
shall be eligible for an at -large registered nurse 
position. A plurality of votes for the registered 
nurse not elected to one of the specified catego- 
ries shall elect that registered nurse to the at-large 
position. 

(i) fk} Separate ballots shall be prepared for 
election of registered nurse nominees and for 
election of licensed practical nurse nominees. 
Nominees shall be listed in random order on the 
ballot for licensed practical nurse nominees and 
within the categories for registered nurse nomi- 
nees. Ballots shall be accompanied by bi- 
ographical data on nominees and a passport-type 
photograph. Ballots shall prescribe the method 
of voting. 

(j) (4) Any nominee may withdraw her his name 
at any time by written notice prior to the date 
and hour fixed by the Board as the latest time for 
return for ballots. Such nominee shall be elimi- 
nated from the contest and any votes cast for that 
nominee shall be disregarded. 

(k) {$ On or about June 15, the appropriate 
ballot and a return official envelope shall be 
mailed to the address on record for each currently 
licensed nurse on that date, together with a notice 
designating the latest day and hour for return of 
ballot which shall not be earlier than the tenth 
day following the mailing. 

(1) (k-) The Board of Nursing may contract with 
a computer or other service for receipt of envel- 
opes with ballots and the counting of ballots. 



(m) (1) The counting of ballots shall be con- 
ducted as follows: 

(1) The certificate number and name of the 
voter shall be entered on the perforated 
section of the ballot sheet. 

(2) The certificate number and name of the 
voter shall be matched with the registra- 
tion list. In the event that there is not a 
match, the entire ballot sheet shall be set 
aside for inspection, validation, or invali- 
dation by the Board of Nursing. 

(3) Those ballots which are not set aside shall 
have the perforated section completely 
separated from the ballot portion of the 
sheet. 

(4) Only official ballots shall be counted. 

(5) A ballot marked for more names than 
there are positions to be filled shall not 
be counted for that category but shall be 
counted for all other categories voted cor- 
rectly. 

(6) If for any reason it is impossible to deter- 
mine a voter's choice for a category of 
nurse, that ballot shall not be counted for 
that category, but shall be counted for all 
other categories clearly indicated. 

(7) Ballots identified in (2), (5) and (6) of this 
Paragraph shall be set aside for inspection 
and determination by the Board of Nurs- 
ing. 

(n) f»} A plurality vote shall elect. If more 
than one person is to be elected in a category, the 
plurality vote shall be in descending order until 
the required number has been elected. In any 
election, if there is a tie vote between nominees, 
the tie shall be resolved by a draw from the 
names of nominees who have tied. 

(o) fn4 The results of an election shall be re- 
corded in the minutes of the next regular meeting 
of the Board of Nursing following the election 
and shall include at least the following: 

(1) the number of nurses eligible to vote, 

(2) the number of return ballots set aside and 
the disposition of same, 

(3) the number of ballots cast, 

(4) the number of ballots declared invalid, and 

(5) the number of votes cast for each person 
on the ballot. 

(p) f*4 The results of the election shall be for- 
warded to the Governor and the Governor shall 
commission those elected to the Board of Nurs- 
ing. 

(q) ff4 All petitions to nominate a nurse, signed 
consents to appear on the ballot, verifications of 
qualifications, perforated sections of the ballot 
sheets containing the certificate number and 
name of the voter, and the ballots shall be pre- 



7:7 NORTH CAROLINA REGISTER July I, 1992 



702 



PROPOSED RULES 



served for a period of three months following the 
close of an election. 

Statutory Authority G.S. 90-171.21; 

90-171. 23(b). 

SECTION .0200 - LICENSURE 

.0223 CONTINUING EDUCATION PROGRAMS 

(a) Definitions. 

(1) Continuing education in nursing is a non 
dogroo oriontod, planned, organized learn- 
ing experience taken after completion of 
a basic nursing program I» addition, a 
courno(o) ef eomponont(fi) ef- a- couroo(o) 
within a» academic dogroo oriontod pro 
gram which prepares a nurse to perform 
advanced skills. Types of learning expe- 
riences that may be considered continuing 
education as defined in Paragraph Sub- 
paragraph (a)(3) of this Rule include: 

(A) a non-degree oriented program; 

(B) a course(s) or component(s) of a 
course(s) within an academic degree- 
oriented program ; or 

(C) an advanced academic degree-granting 
program which prepares the registered 
nurse for advanced practice as a clinical 
nurse specialist, nurse anesthetist, nurse 
midwife or nurse practitioner. 

(2) Programs offering an educational experi- 
ence designed to enhance the practice of 
nursing are those which include one or 
more of the following: 

(A) enrichment of knowledge; 

(B) development or change of attitudes; or 

(C) acquisition or improvement of skills. 

(3) Programs are considered to teach nurses 
advanced skills when: 

(A) the skill taught is not generally included 
in the basic educational preparation of the 
nurse; and 

(B) the period of instruction is sufficient to 
assess or provide necessary knowledge 
from the physical, biological, behavioral 
and social sciences, and includes super- 
vised clinical practice to ensure that the 
nurse is able to practice the skill safely and 
properly. 

(4) Student status may be granted to an indi- 
vidual who does not hold a North 
Carolina nursing license but who partic- 
ipates in a clinical component of a con- 
tinuing education programs in North 
Carolina when: 

(A) the individual possesses a current un- 
encumbered license to practice nursmg in 
a jurisdiction other than North Carolina; 



(B) the course offering meets one of the 
following criteria: 

(i) is part of an academic degree-granting 
nursing program which has approval in 
a jurisdiction other than North 
Carolina or national accreditation; or 

(ii) is offered through an in-state aca- 
demic institution which has Board ap- 
proval for basic nursing education 
program(s) or national accreditation for 
advanced nursing education program(s); 
or 

(iii) is approved by the Board as a con- 
tinuing education offering, thereby 
meeting the criteria as defined in Para- 
graph (b) of this Rule. 

(C) the individual receives supervision by a 
qualified preceptor or member of the fac- 
ulty who has a valid license to practice as 
a registered nurse in North Carolina; 

(D) the course of instruction has a specified 
period of time not exceeding twelve 
months; 

(E) the individual is not employed in nurs- 
ing practice in North Carolina during 
participation in the program; and 

(F) the Board has been given advance no- 
tice of the name of each student, the ju- 
risdiction in which the student is licensed, 
the license number, and the expiration 
date. 

(b) Criteria for voluntary approval of continu- 
ing education programs in nursing. 

(1) Planning the educational program shall 
include: 

(A) definition of learner population; for 
example, registered nurse, licensed practi- 
cal nurse, or both; 

(B) identification of characteristics of the 
learner; for example, clinical area of prac- 
tice, place of employment, and position; 
and 

(C) assessment of needs of the learner; for 
example, specific requests from individ- 
uals or employers, pre-tests, or audits of 
patient records. 

(2) Objectives shall: 

(A) be measurable and stated in behavioral 
terms; 

(B) reflect the needs of the learners; 

(C) state desired outcomes; 

(D) serve as criteria for the selection of 
content, learning experiences and evalu- 
ation of achievement; 

(E) be achievable within the time allotted; 
and 

(F) be applicable to nursing. 

(3) Content shall: 



703 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



(A) relate to objectives; 

(B) reflect input by qualified faculty; and 

(C) contain learning experiences appropri- 
ate to objectives. 

(4) Teaching methodologies shall: 

(A) utilize pertinent educational principles; 

(B) provide adequate time for each learning 
activity; and 

(C) include sharing objectives with partic- 
ipants. 

(5) Resources shall include: 

(A) faculty who have knowledge and expe- 
rience necessary to assist the learner to 
meet the program objectives and are in 
sufficient number not to exceed a faculty- 
learner ratio in a clinical practicum of 
1:10. If higher ratios are desired, sufficient 
justification must be provided; and 

(B) physical facilities which ensure that ad- 
equate and appropriate equipment and 
space are available and appropriate clin- 
ical resources are available. 

(6) Evaluation must be conducted: 

(A) by the provider to assess the partic- 
ipant's achievement of program objectives 
and content and will be documented; and 

(B) by the learner in order to assess the 
program and resources. 

(7) Records shall be maintained by the pro- 
vider for a period of three years and shall 
include a summary of program evalu- 
ations, roster of participants, and course 
outline. The provider shall award a cer- 
tificate to each participant who success- 
fully completes the program. 

(c) Approval process. 

(1) The provider shall: 

(A) make application on forms provided 
by the Board no less than 60 days prior 
to the proposed enrollment date; 

(B) present written documentation as spec- 
ified in (b)(1) through (b)(7) of this Rule; 
and 

(C) notify the Board of any significant 
changes relative to (b)(1) through (b)(7) 
of this Rule; for example, changes in fac- 
ulty or total program hours. 

(2) Approval is granted for a two year period. 
Any request to offer an approved program 
by anyone other than the original provider 
must be made to the North Carolina 
Board of Nursing. 

(3) If a course is not approved, the provider 
may appeal in writing for reconsideration 
within 30 days after notification of the 
disapproval. If the course is not approved 
upon reconsideration, the provider may 



request a hearing at the next regularly 
scheduled meeting of the Board. 

(4) Site visits may be made by the Board as 
deemed appropriate to determine compli- 
ance with the criteria as specified in Para- 
graph (b) of this Rule. 

(5) The Board shall withdraw approval from 
a provider if the provider does not main- 
tain the quality of the offering to the sat- 
isfaction of the Board or if there is 
misrepresentation of facts within the ap- 
plication for approval. 

(6) Approval of continuing education pro- 
grams will be included in published re- 
ports of Board actions. A list of approved 
programs will be maintained in the 
Board's file. 



Statutory 
90-171.42. 



Authority G.S. 90-171 .23(b); 



SECTION .0300 - APPROVAL OF NURSING 
PROGRAMS 

.0325 REMOVAL OF APPROVAL 

(a) I "pon notification of practice(s) inconsistent 
with nursing laws and standards in board ap- 
proved facilities, the Board of Nursing shall con- 
duct an investigation to substantiate 
complaint(s). 

(b) Once a complaint is substantiated, the 
Board shall: 

notify the facility of the violations in 



ill 

121 
[31 
(41 



wnting; 



specify time frame for correction of 
violation(s); 

specify actions necessary by the facility to 
verify compliance; 

provide written notice to all appropriate 
agencies and approved programs utilizing 
the facility for nurse or unlicensed per- 
sonnel educational experiences of the 
non-compliance; and 
(5) conduct a survey with a minimum of two 
consultants, one of whom shall be an ed- 
ucation consultant, to verify nursing is 
consistent with law and standards. 

(c) If findings at the time of the survey are that 
nursing care is consistent with law and standards, 
the approval status of the facility shall remain 
unchanged. I he t.icihty and all agencies and 
programs notified in accordance with Subpara- 
graph (b)(4) of this Rule, shall receive written 
notice that the facility is in compliance with law 
and standards. 

(d) If findings following the survey are that 
nursing care is in continuing non-compliance 
with law and standards, the Executive Director 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



704 



PROPOSED RULES 



shall summarily suspend approval status for stu- 
dent u so The facility shall be notified in writing 
of the findings and all appropriate agencies and 
programs notified in accordance with Subpara- 
graph (b)(4) of this Rule, shall receive written 
notice ot t_he facility's non-compliance with law 
and standards and loss of approval. 

(e) Facilities desiring re-approval for student 
use shall: 

( 1) provide written documentation or present 
substantial evidence to demonstrate com- 
pliance with law and standards; and 

(2) request a survey revisit by the Board of 
Nursing. 

Statutory Authority G.S. 90-17 1 .23(b); 
90-17/38; 90-171.39; 90-171.40; 90-17 1 .42(b). 

****************** 



either a valid license under this Article or a Cer- 
tificate of Clinical Competence of the American 
Speech- Language- Hearing Association, in the 
area for which supervised credit is sought, who 
must be physically present in the same facility 
and accessible to the student during the per- 
formance of the practicum. As a nainimum 
standard of supervision, clinical supervisors of 
students in practicum must directly observe at 
least 50 percent of each evaluation session, in- 
cluding screening and identification activities, and 
at least 25 percent of each student's total contact 
time with each client. 

Statutory Authority G.S. 90-294(c)(2); 
90-304(3); 150B-40(b). 

TITLE 25 - OFFICE OF STATE 
PERSONNEL 



Ivotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of Ex- 
aminers for Speech and Language Pathologists 
and Audiologists intends to adopt rule( s) cited as 
21 NCAC 64 .0208 with changes from the pro- 
posed text noticed in the Register, Volume 6, Is- 
sue 23, page 1777. 

1 he public hearing will be conducted at 11:00 
a.m. on July 31, 1992 at 400 W. Main St., Suite 
608, Durham, NC 27702. 

1 he proposed effective date of this action is Oc- 
tober 1. 1992. 

JKeason for Proposed Action: To adopt new rule 
interpreting required supervision for student 
practicum to insure adequacy of supervision. 

(_ omment Procedures: Persons may present 
statements either orally or in writing at the hearing 
or in writing within five days prior to the hearing 
to the Board of Examiners for Speech and Lan- 
guage Pathologists, P.O. Box 5545, Greensboro, 
North Carolina 27435-0545. 

CHAPTER 64 - BOARD OF EXAMINERS OF 

SPEECH AND LANGUAGE PATHOLOGISTS 

AND AUDIOLOGISTS 

SECTION .0200 - INTERPRETATIVE RULES 

.0208 SUPERVISION OF CLINICAL 
PRACTICUM 

The Board interprets the word "supervision" 
used in (i.S. 90-295(3) to require that the super- 
vision must be performed bv a person who holds 



Ivotice is hereby given in accordance with G.S. 
150B-21.2 that the Office of State Personnel/ State 
Personnel Commission intends to amend rules 
cited as 25 NCAC JC .0501 - .0504; IE .0804, 
.0806 - .0807, .0812, .08/5, .0817 - .0819; adopt 
25 NCAC IE .0820; II .2407 - .24/1 and repeal 
25 NCAC IE .0810 - .0811, .0813. 

1 he proposed effective date of this action is Oc- 
tober 1, 1992. 

1 he public hearing will be conducted at 9:00 
a.m. on August 4, 1992 at the State Personnel 
Development Center, 101 W. Peace Street, 
Raleigh. North Carolina. 



R 



eason for Proposed Action: 



25 NCAC 1C .0501 - .0504 - These rules are pro- 
posed to be amended to define what a bona fide 
meal period is (Fair Labor Standards Act defi- 
nition) and to clarify what constitutes a meal pe- 
riod. A provision is also included which 
recognizes that part-time and some shift employ- 
ees do not work the normal daily schedule and 
therefore allows the agency to determine appro- 
priate schedules for them. 

25 NCAC IE .0810, .0811, .0813 - These rules are 
proposed to be repealed in order to adopt and 
amend rules to conform to current practices. 

25 NCAC IE .0804, .0806 - .0807, .0812, .0815, .0817 
- .08 1 9 - These rules are proposed to be amended 
to offer guidance and clarification to state agen- 
cies and universities in implementing the military 
leave policies. 



705 



7: 7 NOR TH CAR OLINA REGIS TER July 1, 1 992 



PROPOSED RULES 



25 NCAC IE .0820 - This rule is proposed to be 
adopted to clarify the military leave provisions 
which are applicable to the State Defense Militia 
and to offer guidance to stale agencies and uni- 
versities in implementing these provisions. 

25 NCAC II .2407 - .241 1 - These proposed rules 
are to replace out-of-date rules in the process of 
being repealed. 



Co 



, omment Procedures: Interested persons may 
present statements either orally or in writing at the 
Public Hearing or in writing prior to the hearing 
by mail addressed to: Barbara A . Coward, Office 
of State Personnel, 1 16 W. Jones Street, Raleigh, 
N.C. 27603. 

CHAPTER 1 - OFFICE OF STATE PERSONNEL 

SUBCHAPTER IC - PERSONNEL 
ADMINISTRATION 

SECTION .0500 - WORK SCHEDULE 

.0501 STANDARD WORKWEEK 

The standard workweek for employees subject 
to the Personnel Act is 40 hours per week. The 
normal daily work schedule is five days per week, 
eight hours a day plus a lunch meal period. 
Other schedules apply to part-time employees 
and some shift employees; agencies are responsi- 
ble for determining the appropriate schedules for 
these employees. Because of the nature of the 
various state activities, some positions require a 
workweek ef moro other than five days. The 
normal daily work schedule shall may not apply 
to educational, hospital and similar institutions 
with schedules geared to round-the-clock service. 
unlooo th e y elect to adopt it? 

Statutory Authority G.S. 126-4. 

.0502 VARIABLE WORK SCHEDULE 

U is the policy ef state government that, m 
Agencies utilizing the normal daily may choose 
to utilize a variable work schedules, schedule that 
allows employees be allowed to choose a daily 
work schedule and meal period which, subject to 
agency necessities, is most compatible with their 
personal needs, this ohall be referred te as a 
variable) work schedule. Supervisors are respon- 
sible for arranging operating procedures that are 
consistent with the needs of the agency and the 
public it serves, and at the same time can ac- 
commodate, as far as possible, the employee's 
choice of daily work schedule within the estab- 
lished limits. If any adjustments of employee 



work schedules are necessary, this should be done 
as fairly and equitably as possible. 

Statutory Authority G.S. 126-4. 

.0503 IMPLEMENTATION 

(a) Each new employee shall be given detailed 
information about the variable work schedule 
and given the opportunity to select the schedule 
preferred prior to reporting for work. Work 
schedules are to be associated with individuals 
and not with position, with the exception that 
there may be positions which must be filled on 
some predetermined schedule. In these excep- 
tional cases, applicants shall be informed of this 
predetermined schedule prior to any offer and 
acceptance of employment. 

(b) The employee and his /her supervisor shall 
agree upon the schedule to be followed, consist- 
ent with the needs of the agency. The lunch 
meal period may be scheduled within the normal 
work hours to meet the needs of the employee 
and the working unit but may not be used to 
shorten the workday. A bona fide meal period 
is a span of at least 30 consecutive minutes dur- 
ing which an employee is completely relieved of 
duty. It is not counted as hours worked. Any 
so-called "meal period" of less than 30 consec- 
utive minutes must be considered as hours 
worked for employees who are non-exempt as 
defined by the Fair Labor Standards Act. 

(c) Each supervisor shall compile a record of 
the work schedules for all subordinates. 

(d) Agency administrators shall be responsible 
for providing adequate supervision for each work 
unit during the hours employees are scheduled to 
work. This can be accomplished by sharing or 
by delegation of authority of supervisor. 

(e^ Throo montho after a work oohodulo has 

oovn u.'nn'ii mil ti 1 1 i\_'i \.' jiiuh i_*v cm \j i.'l'ii doiciv in ' 1 1 

pvl IUT] UlII 1 1 1 EL, "• I IHJI I L11VI I Ullll'll' T l. I- TO E>I " *- 1 1 1 1 'U 

opportunity te chango the choice ef work oched 

\l l\rj . TTrtTTTTTTrT^ ED I Vl^I I 1-TVH-^.T H-7 1 1 I '11 H >K1 .'I IUH 

be held at l e ast every- twelvo montho. 

ff) If a» omployoe needs te- chang e his work 
sch e dul e at a time oth e r than during a» "open 
selection p e riod" this shall be permit tod if the 
supervisor ea» arrange the workload &e that- this 
chango is set detrimental te the functioning ef 

tii^ unit 
I 1 l\J LI I It I . 

Statutory Authority G.S. 126-4. 

.0504 LIMITATIONS 

(a) An employee who arrives later than sched- 
uled, may be permitted to make up deficit by 
working that much longer » the afternoon at the 
end of the workday if this is consistent with the 



7:7 NORTH CAROLINA REGISTER July I, 1992 



706 



PROPOSED RULES 



work need of the agency. Otherwise, the 
tardiness shall be charged to the appropriate leave 
category. Supervisors shall be responsible for 
taking appropriate action to correct any abuse 
or misuse of this privilege which may include 
deductions from employee's pay. 

(b) If an employee reports to work early he /she 
may, with the supervisor's permission, begin 
work at that time and leave at a correspondingly 
early hour; m the aftornoon; otherwise, the em- 
ployee shall wait in a designated area away from 
whor e other omployooo are at- work, the work 
station. 

(c) If an employee leaves work early without 
permission, the time shall be deducted from the 
employee's pay or may be charged to the appro- 
priate leave account if justified. 

(d) An employee may not work later than 
scheduled unless the supervisor has approved it 
due to workload. 

Statutory Authority G.S. J 26-4. 

SUBCHAPTER IE - EMPLOYEE BENEFITS 

SECTION .0800 - MILITARY LEAVE 

.0804 PERIODS OF ENTITLEMENT FOR 
ALL RESERVE COMPONENTS 

Militar y' l e av e with pay shall be granted to f»U- 
tim e e* part timo permanent, trainee an4 
probationary omployooo fof 96 working hours 
annually (prorat e d fe* part tim e employees) fof 
a«y- type el activ e military duty »£ a momhor net 
oft extended activ e duty a* d e fin e d i» Rul e .0803 
of this Section. Q» rafe occu » jions doe to annual 
training (summer camp) being sch e duled »» a 
federal fiscal yea* basis at* employeo may be re- 
quir e d to att e nd tw-e- periods of training ift ooe 
calendar yoar. Pop instanc e , the employee may 
be requir e d to att e nd annual training fo* federal 
fiscal yeaf 10 SO m March aftd fop f e d e ral fiscal 
yea? 1081 m November, Pof this purpos e only, 
aft employee shall be granted a» additional % 
hours military' leav e (prorated for- part tim e em- 
ployees} during the same calendar yeaf as re- 
quirod. 

(a) Military leave with pay shall be granted to 
full-time or part-time permanent, trainee and 
probationary employees for u£ to 120 working 
hours (prorated for part-time employees) during 
the federal fiscal year, beginning October J_ and 
ending on September 30, for any type of active 
militan duty for members not on extended active 
duty. 



(b) Regularly scheduled unit assemblies occur- 



ring on weekends and referred to as "drills' 



Although these periods do not normally require 
military" leave, the employing agency is required 



to excuse an employee for all regularly scheduled 
military training duty. If necessary the employ- 
ee's work schedule shall be appropriately rear- 
ranged to enable the employee to attend these 
assemblies. To determine the dates of these reg- 
ularly scheduled unit assemblies, the employing 
agency may require the employee to provide a 
unit training schedule which lists training dates 
for a month or more in advance. Military leave 
with pay [from Paragraph (a) of this Rule| or 
vacation may be used if "drills" occur on week- 
days. 

(c) An employee shall be granted necessary 
time off when the employee must undergo a re- 
quired physical examination relating to member- 
ship in a reserve component without charge to 
leave. 

Statutory Authority G.S. J 26-4; 1 27 A- 1 16. 

.0806 PERIODS OF ENTITLEMENT FOR 
CIVIL AIR PATROL 

(a) While the Civil Air Patrol is not a reserve 
component, it is an auxiliary to the U.S. Air 
Force. Its members are not subject to obligatory 
service. When performing missions or 
encampments authorized and requested by the 
U.S. Air Force or emergency missions for the 
state at the request of the Governor or the Sec- 
retary of the Department of Crime Control and 
Public Safety, a member of the Civil Air Patrol 
is entitled to military leave not to exceed a com- 
bined total of % 120 hours (prorated for part- 
time employees) in any calendar year unless 
otherwise authorized by the Governor. Such 
service may be verified by the Secretary of the 
Department of Crime Control and Public Safety 
upon the request of the employing agency. 

(b) Regularly scheduled unit training assem- 
blies, usually occurring on weekends are not ac- 
ceptable for military leave with pay, however, 
employing agencies are encouraged to arrange 
work schedules to allow employees to attend this 
training. 

Statutory Authority G.S. 126-4; I27A-116. 

.0807 UNACCEPTABLE PERIODS 

Employees shall not be entitled to military leave 
with pay for the following periods: 

(4-) regularly scheduled tmit assemblies usually 
occurring o» weekends a«4 referred to as 
"drills"; Although these periods afe unac 
ceptable top military leav e with payr me 
employing agency is required to excus e a» 
employee fof regularly scheduled military 
training duty. If necessary the employee's 
work schedule shall be appropriately Feaf- 



707 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



ranged te enable the omployoo t» attend 
thooo aooomblioo. ¥e dotormine the dateo ef 
thooo regularly ochodulod Hftit aooomblioo, 
the employing agency mey require the efR- 
ployoo to- provid e a «*h4- training ochodulo 
which list* training dat e s fof a month ef 
more ift advanc e . Employing agenci e s are 
»et required t» oxcuoe a» omployoo fof mH- 
itar/ oon r ico performe d undor the circum 
otancoo dofinod m Parts (3}? (3) a«4 (4) ef 

(1) (5) duties resulting from disciplinary actions 
imposed by military authorities; 

(2) £5) for unscheduled or incidental military 
activities such as volunteer work at military 
facilities (not in duty status), unofficial mili- 
tary activities, etc.; 

(3) (4) for inactive duty training (drills) per- 
formed for the convenience of the member, 
such as equivalent training, split unit as- 
semblies, make-up drills, etc. 

Employing agencies are not required to excuse 
an employee for military service performed under 
circumstances described in Subparagraphs (1), (2) 
and (3) of this Rule. 

Statutory Authority G.S. 126-4; 127A-1I6. 

.0810 LEAVE WITH PAY: PHYSICAL 

EXAMINATION FOR MILITARY SERVICE 

Aft omployoo shall be granted necessary timo eff- 
whon the employee must undergo a required 
physical examination relating te military service. 

Statutory Authority G.S. 126-4; 127A-116. 

.081 1 MILITARY LEAVE WITH 
DIFFERENTIAL PAY 

Military leave with differential pay- between 
military pay- a»4 regular state payr if military pay- 
is the lessor, shall be granted fof aotivo otato duty 
fof periods is- e xcess ef 30 consecutive calendar 

Statutory Authority G.S. 126-4; I27A-116. 

.0812 MILITARY LEAVE WITHOUT PAY: 

ATTENDANCE AT SERVICE SCHOOLS 

(a) Military' leave without pay shall be granted 
for certain periods of active duty or for attend- 
ance at service schools. Except for extended ac- 
tive duty (covered in Rule .0803 of this Section) 
use of all or any portion of an employee's % 120 
hours annual military leave (prorated for part- 
time employees) with pay or regular vacation 
leave may be used in lieu of or in conjunction 
with military leave without pay. 

(b) Military leave without pay shall be granted 
for attendance at service schools when such at- 



tendance is mandatory for continued retention in 
the military service. 

(c) For purposes other than retention, military 
leave without pay may be granted employees for 
attendance at resident military service schools. 
However, when the employee is required by a 
reserve component to attend a resident special- 
ized military course because the course is not 
available by any other means (i.e., correspond- 
ence course, USAR school, etc.) military leave 
without pay shall be granted. To verify that such 
a course is mandatory, the agency may contact 
the Department ef Crimo Control et&4 Public 
Safety. Office of the Adjutant General, North 
Carolina National Guard, Att: Vice Chief of 
Staff-State Operations. 

Statutory Authority G.S. 126-4; 127 A- 116. 

.0813 EXTENDED ANNUAL ACTIVE DUTY 

Military' leave without pay- ohall be granted if 
additional timo is required fof annual activ e duty 
fof training purposes b e yond the allowable; % 
worleing hours eaeh yoar. ^Phe employee f»ay 

^^L^^^^ ^^^ ' | | , J T ■ ■ \ ■ * > \ 1 \ : -\ t ) L^^^^^^A |^^^^^^^Q t l"fc *"\ r-l Qrt j-\ t-1 1 ."* J"t T ■/"> 

C^^^CT IV tl^^7 ' WVT.IT rV7H R.TI T V nimvr 1 1 tul I 5^_* tTT rCTfTv 

without pay-7 

Statutory Authority G.S. 126-4; 127A-116. 

.0815 EMPLOYEE RESPONSIBILITY: 
LEAVE WITHOUT PAY 

The employee shall make available to the 
agency head a copy of orders to report for active 
duty, shall advise the agency head of the effective 
date of leave and the probable date of return, 
shall provide the agency head with any requested 
information regarding military service, af*4 shall 
be responsible for making application for rein- 
statement within 90 days from the date of sepa- 
ration from service and shall notify the agency 
of any decision not to return. 

Statutory Authority G.S. 126-4. 

.0817 RETENTION AND CONTINUATION 
OF BENEFITS 

(a) The employee may choose to have accu- 
mulated vacation leave paid in a lump sum, may 
exhaust this leave, or may retain part or all of 
accumulated leave until return to state service; 
the maximum accumulation of 240 hours applies 
to lump sum payment. 

(b) The employee shall retain all accumulated 
sick leave and continue to earn time toward sal- 
ary increases and aggregate service. Entitlement 
is given to full retirement membership service 
credit for the period of such active service in the 
Armed Forces after being separated or released, 



7:7 NORTH CAROLINA REGISTER July I, 1992 



708 



PROPOSED RULES 



or becoming entitled to be separated or released, 
from active military service for othor than 
honorable conditions. Under this provision, 
credit is received for such service upon filing with 
the Teachers' and State Employees' Retirement 
System a copy of the service record showing 
dates of entrance and separation. (In addition, 
the retirement membership service credit is 
available to employees who return to state em- 
ployment within a period of two years after the 
earliest discharge date, or any time after discharge 
and who have rendered 10 or more years of 
membership in the retirement system.) Volun- 
tary enlistments following the earliest discharge 
are not creditable. 

Statutory Authority G.S. 126-4. 

.0818 REINSTATEMENT FROM LEAVE 

WITHOUT PAY FOR MILITARY SERVICE 

(a) Employees on leave without pay who are 
separated or discharged from military service un- 
der honorable conditions and who apply for 
reinstatement within the established time limits 
shall be reinstated to the same position or one 
of like status, seniority and pay with the same 
agency or with another state agency. If, during 
military' service, an employee is disabled to the 
extent that the duties of the original position 
cannot be performed, the employee shall be 
reinstated to a position with duties compatible 
with the disability. 

(b) The employee's salary upon reinstatement 
shall be based on the salary rate just prior to 
leave plus any general salary increases due while 
on leave. In no case will the reinstated employ- 
ee's salan' be less than when placed in a military 
leave status. The addition ef performance salary 
increases may be considered by the agency head. 
If the employee was in trainee status at the time 
of military leave, the addition of trainee adjust- 
ments may be considered, aX the discretion of the 
agency head, if it can be determined that the 
military experience was directly related to devel- 
opment in the area of state work to be per- 
formed. Employees who resign without 
knowledge of their eligibility for leave without 
pay and reinstatement benefits, but who are oth- 
erwise eligible for the reinstatement benefits of 
this Paragraph, shall be reinstated from military 
service the same as if they had applied for and 
been granted leave without pay for military ser- 
vice. A» employee e» leave without pay who 
receives a discharge &f separation und e r condi 
bono less than honorable fftay- be considered fop 
reinstatement. The decision te r e instate a» efft- 
ployee se discharged e* separated shall be the 
responsibility ef the agency head. 



Statutory Authority G.S. J 26-4. 

.0819 RESERVE ENLISTMENT PROGRAM OF 

I963(REP-63) 

Military leave without pay- shall be granted fof 
aotivo 8+rty training upon initial e nlistment m a 
reserv e component . This poriod is variable bet 
averages about si* months a«4 is somotimos re- 
forred te- as il si* months active duty." 

The employee may use all or part of his her 120 
hours of military leave with pay or regular vaca- 
tion leave or a combination of the two in lieu of 
military' leave without pay. 

Statutory Authority G.S. 126-4; 1 27 A- 116. 

.0820 PERIODS OF ENTITLEMENT FOR 

MEMBERS OF THE STATE DEFENSE 
MILITIA 

(a) The State Defense Militia is considered a 
reserve to the National Guard, but it is not a re- 
serve component of the US. Armed Forces. Its 
members are not subject to obligatory service 
unless they are assigned to a unit that is ordered 
or called out by the Governor. Only under 
conditions described in this Rule are State em- 
ployees who are members of the State Defense 
Militia entitled to military leave with pay. L rider 
these conditions an employee may be granted 
military leave not to exceed 120 hours (prorated 
for part-time employees) during any calendar 
year. 

(1) Infrequent special activities in the interest 

of the State, usually not exceeding one 

day, when so ordered by the Governor or 

his authorized representative. 

State duty for missions related to disasters, 



[21 



search and rescue, etc. 



again : 



only when 



ordered by the Governor or his authorized 
representative. 

(b) State employees who are members of the 
State Defense Militia are not entitled to military 
leave with pay when volunteering for support of 
functions or events sponsored bv civic or social 
organizations even though such support has been 
"authorized". 

(c) Regularly scheduled unit training assem- 
blies, usually occurring on weekends, are not ac- 
ceptable for militan' leave with pav. however, 



employing agencies are encouraged to arrange 
work schedules to allow the employee to attend 
this training. 

(d) Deputy status may be verified with the Of- 
fice of the Adjutant General, North Carolina 
National Guard, ATTN: Vice Chief of Staff- 
State Operations (VCSOP). 



7 09 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



PROPOSED RULES 



Statutory Authority G.S. 126-4; 127 A- 16. 

SUBCHAPTER II -SERVICE TO LOCAL 
GOVERNMENT 

SECTION .2400 - BASIC REQUIREMENTS FOR 

A"SUBSTANTIALLY EQUIVALENT" 

PERSONNEL SYSTEM 

.2407 AREAS NOT COVERED BY THE 

EQUIVALENCY EXEMPTION COVERAGE 

Requirement. Authority for final determination 
of the applicability of the State Personnel Act, 
and thereby these requirements, as concerns any 
local employee will continue to be vested in the 
Office of State Personnel. 

(Guide. Applicability is primarily contin- 
gent upon the limits of contractual agree- 
ments enabling the designated Federal or 
State grant-in-aid to local government, the 
basic details of which are set forth in the 
State Personnel Act. Questions of cover- 
age should be addressed to the Local Gov- 
ernment Coordinator, Office of State 
Personnel.) 

Statutory Authority G.S. 126-11 . 

.2408 CONDITION OF PRIVILEGE 

A substantially equivalent personnel system ex- 
emption, approved by the State Personnel Com- 
mission under NCGS 1 26- 1 1 , is a condition of 
privilege. Under such privilege, a local govern- 
ment jurisdiction may operate its own system of 
personnel administration for all employees of the 
jurisdiction, including those subject to the State 
Personnel Act. This privilege shall be continued 
by the State Personnel Commission so long as 
the local system remains substantially equivalent 
to the Basic Requirements for a Substantially 
Equivalent Personnel System. The Office of 
State Personnel, in its staff capacity to the State 
Personnel Commission, shall act on the Com- 
mission's behalf in evaluating the ongoing 
equivalency status of exempted systems. 

Statutory Authority G.S. 126-11. 

.2409 ONGOING EXPECTATIONS 

In order that the Office of State Personnel shall 
have access to the information and materials 
necessary to an informed judgment of whether 
an exempted, local personnel system remains 
substantially equivalent, local jurisdictions desir- 
ing to maintain exempted systems shall comply 
with the following requirements: 

(1) Recertification. Recertification of the 
commitment by a Board of County Com- 
missioners or Area Mental Health Authority 



to maintain a system or portion of a system 
of personnel administration in accordance 
with the Basic Requirements for a Substan- 
tially Equivalent Personnel System may be 
necessary, at the discretion of the State Per- 
sonnel Commission, in the following in- 
stances: 



(A) 



Upon significant change in the member- 
ship of the Board of Commissioners or 



Area Authority. 

(B) Upon passage of significant new legis- 
lation or policy which will apply to the 
local system or system portion. 

(C) Upon major reorganization, restructuring, 
or downsizing of the personnel system of 
the county or Area Authority. 

[2} Staffing. 

(A) the Board of County Commissioners or 
Area Authority shall provide for the on- 
going presence of a qualified staff for all 
exempted portions of the local personnel 
system. 

(B) The staffing complement assigned to the 
personnel system by the Board of County 
Commissioners or Area Authority shall 
at all times remain reasonably adequate to 
assure that the day-to-dav operational de- 
mands of the personnel management sys- 
tem are met in an efficient and expedient 
manner, and to assure that administrative 
and technical requirements for maintain- 
ing the personnel system in professionally 
sound order are well served. 

(C) Each jurisdiction which has been granted 
a substantially equivalent personnel sys- 
tem exemption shall annually, or upon 
major interim change, tile with the Office 
of State Personnel an organizational chart 
which accurately depicts the complement 
and organizational structure of the staff 
currently assigned to the operation of the 
personnel function. 

(3) Filling of System Documentation. Each 
jurisdiction which has been granted a sub- 
stantially equivalent personnel system ex- 
emption by the State Personnel Commission 
shall annually, or upon substantial interim 
change, file with the Office of State Person- 
nel: 

(A) All personnel policies currently pertaining 
to exempt portions of the local system, 
which have been adopted by the Board 
of County Commissioners, County Man- 
ager, Area Authority, or Area Director. 

(B) Documentation which in material and 
substance fully illustrates the design, 
method, and process currently being em- 
ployed in the administration of exempted 



7:7 NORTH CAROLINA REGISTER July I, 1992 



710 



PROPOSED RULES 



portions of the local personnel system. 
If there has been no substantial change in 
personnel policies or technical method 
within an annual penod, the County 
Manager or Personnel Director shall so 
certify in a letter to the Local Government 
Coordinator, Substantially Equivalent 
Svstems, Office of State Personnel. 



sonnel in the conduct of a comprehensive 
annual review, which shall have as its pur 



(C) Jurisdictions with exempted systems shall 
cooperatively respond to related requests 
by the Office of State Personnel for addi- 
tional information which is deemed es- 
sential to a complete and accurate 
understanding of the design and process 
of a local system. 

(4) Records and Reports. Personnel records 
shall be created and maintained as necessary 
to serve the operational requirements of ex- 
empted portions of the local personnel sys- 
tem, and to maintain an auditable history 
of position and employee actions processed. 

(5) Records Pnvacy. Appropriate access and 
privileges for employees and appropriate 
limitations for other persons regarding the 
storage, utilization, and disclosure of per- 
sonnel records shall be assured according to 
the proyisions of the Records Privacy Act 
I NCOS 153A-98). 

(6) Complaints. Jurisdictions with exempted 
systems shall cooperate fully with the Office 
of State Personnel in responding to and re- 
solving complaints which may arise over the 
course of time challenging the substantial 
equivalency of a local personnel system. 

(7) Formal .Annual Review. In addition to 
other informal reviews which transpire 
through ongoing, cooperative interchange, 
jurisdictions with exempted systems shall 



pose a determination of whether an ex- 
emoted personnel system remains in 
compliance with the Basic Requirements for 
a Substantially Equivalent Personnel Sys- 
tem. Where discrepancies are identified, the 
Office of State Personnel shall formally de- 
clare such findings to the jurisdiction in 
writing, and shall work actively with the ju- 
risdiction to effect a satisfactory resolution 
which shall restore compliance. Where is- 
sues of non-compliance cannot be resolved 
within a reasonable length of time, the Office 
of State Personnel shall recommend to the 
State Personnel Commission that the sub- 
stantially equivalent exemption be rescinded. 

Statutory Authority G.S. 126-1 1. 

.2410 OSP ASSISTANCE 

The Office of State Personnel is available to 
provide counsel and technical assistance on mat- 
ters of substantial equivalency at any time. Such 
assistance shall be provided within the limits of 
available staff and administrative resources. 
Consultation and informal, cooperative inter- 
change is particularly encouraged prior to major 
revisions in policy or technical process. 

Statutory Authority G.S. 126-11. 

.2411 SYSTEM ADVANCEMENTS 

Changes or additions to an exempted personnel 
svstem or system portion shall be substantial 
equivalency in regard to new personnel legis- 
lation or rulemaking at the state or federal level. 






cooperate fully with the Office of State Per- Statutory Authority G.S. 126-1 1. 



711 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



FINAL RULES 



1 his section contains rules filed for publication in the North Carolina Administrative Code where 
a notice was not required for publication in the Register. Also, the text of final rules will be published 
in this section upon request of any adopting agency. 



TITLE 17 - DEPARTMENT OF REVENUE 

CHAPTER 4 - LICENSE AND EXCISE TAX DIVISION 

SUBCHAPTER 4C - CIGARETTE TAX 

SECTION .0100 - GENERAL PROVISIONS 

.0101 DEFINITIONS 

In addition to those definitions as set out in G.S. 105-113.4, the following terms and phrases as used 
in this Subchapter shall, unless the context requires otherwise, have the following meanings: 

(1) Article. Tobacco Products Tax Act or Tobacco Products Tax Article, Article 2A, Chapter 105 
of the General Statutes of North Carolina; 

(2) Department. North Carolina Department of Revenue; 

(3) Excise Tax. The excise tax levied under G.S. 105-113.5, G.S. 105-113.6, and G.S. 105-113.35; 

(4) In this State or within this State - Within the exterior limits of the State of North Carolina, and 
includes all territory within such limits owned by, leased by or ceded to the United States of 
America; 

(5) Meter. Cigarette metering machine; 

(6) Meter Imprints. An ink stamp imprint made upon a package of cigarettes by a meter machine 
to evidence the payment of the excise tax imposed thereon; 

(7) Other Tobacco Product - A cigar or any other product that contains tobacco, other than a cig- 
arette, and is intended for inhalation or oral use; 

(8) Raleigh Office. Office of the license and excise tax division, Revenue Department, Raleigh; 

(9) Revenue Agent. Revenue officer, auditor or other personnel of the North Carolina Department 
of Revenue authorized by the secretary to act in his behalf; 

(10) State. State of North Carolina; 

(11) Vending Machine. Dispenser or dispensing machine; 

(12) Wholesale Cigarette Dealer. Any person who sells cigarettes to others for resale by them who 
does not qualify as a distributor under the definition of distributor in G.S. 105-1 13.4. 

History Note: Statutory Authority G.S. 105-113.4; 105-262; 
Eff February I, 1976; 
Amended Eff June I, 1992; October 30, 1981. 

SECTION .1300 - OTHER TOBACCO PRODUCTS LICENSES 

.1301 LICENSE REQUIREMENTS 

(a) Wholesale dealers and retail dealers, liable for excise tax on other tobacco products under G.S. 
105-1 13.35, must obtain a continuing Other Tobacco Products Tax License on forms prescribed by the 
Secretary for each "place of business" as defined under G.S. 105-113.36. 

(b) Before an other tobacco products license is issued, proper application must be made as directed 
by the Secretary. The application shall be signed and verified by oath or affirmation by the owner, if 
a natural person, and in the case of an association or partnership, by a member or partner thereof, and 
in the case of a corporation, by an executive officer thereof or by any person specifically authorized by 
the corporation to sign the application to which shall be attached the written evidence of his authority. 

(c) The licensee shall notify the Secretary in writing of any changes in the information previously 
provided on the license application as such changes occur. 

(d) The licensee shall be responsible for notifying the manufacturers from whom other tobacco pro- 
ducts are purchased or received of the other tobacco products license issued by the Secretary and of any 
subsequent change relative to the license. 



7:7 NORTH CAROLINA REGISTER July 1, 1992 712 



FINAL RULES 



(e) No license shall be assignable or transferable and is not prorated. 

History Note: Statutory Authority G.S. 105-113.35; 105-113.36; 105-262; 
Eff. June 1, 1992. 

SECTION .1400 - MANUFACTURERS OF OTHER TOBACCO PRODUCTS 

.1401 UNVOICE REQUIREMENT 

W'hen requested by the Secretary, manufacturers shall provide copies of all invoices, or equivalent in- 
formation, on shipments of other tobacco products for sale in this State. 

History Note: Statutory Authority G.S. 105-262; 
Eff. June I, 1992. 

.1402 SALES TO LICENSED DEALERS ONLY 

(a) No manufacturer may make shipments of other tobacco products direct to a person in this State 
not qualified and licensed as a wholesale or retail dealer of other tobacco products. 

(b) .Any manufacturer of other tobacco products shipping such products to other wholesale or retail 
dealers who are licensed pursuant to G.S. 105-1 13.36 for payment of the other tobacco products excise 
tax is relieved of the requirement of paying the tax. 

History Note: Statutory Authority G.S. 105-113.35; 105-113.37; 105-262; 
Eff June 1, 1992. 

.1403 MANUFACTURERS ACTING AS RETAILER 

A retail dealer who manufacturers other tobacco products and sells those products to consumers in 
this State is liable for the tax except for those transactions in other tobacco products which meet ex- 
emption from the tax under G.S. 105-1 13.35. 

History: Note: Statutory Authority G.S. 105-113.35; 105-262; 
Eff June 1, 1992. ' 

SECTION .1500 - LIABILITY FOR OTHER TOBACCO PRODUCTS EXCISE TAX 

.1501 PRIMARY LIABILITY 

(a) The wholesale dealer or retail dealer who fust acquires or handles other tobacco products in this 
State is liable for payment of the excise tax. 

(b) The wholesale dealer or retail dealer who brings other tobacco products into this State is liable 
for payment of the excise tax. 

(1) The out-of-state wholesale dealer or retail dealer who brings such products into the State on its 
own truck. 

(2) The in-state wholesale dealer or retail dealer who brings such products into the State on its own 
truck. 

(c) The wholesale dealer or retail dealer who first receives or handles the other tobacco products in 
this State is liable for payment of the excise tax. 

(1) The wholesale dealer or retail dealer who is the original consignee of other tobacco products 
manufactured or produced outside this State. 

(2) The in-state wholesale dealer or retail dealer who first receives such products from outside the 
State by common carrier or contract carrier. 

History Note: Statutory Authority G.S. 105-113.35; 105-262; 
Eff. June 1, 1992. 

SECTION .1600 MILITARY EXEMPT SALES 

.1601 EXEMPT SALES LIMITED TO ARMED FORCES AND THEIR DEPENDENTS 

Other tobacco products sold to the Federal Government and its instrument;dities, such as the .Armed 
Forces Exchange Services, are exempt from the excise tax. However, sales of other tobacco products 



713 7:7 NORTH CAROLINA REGISTER July 1, 1992 



FINAL RULES 



by such services MUST BE LIMITED to members of the armed forces and their dependents who hold 
identification cards entitling them to make purchases through armed forces exchange services. 

History Note: Statutory Authority G.S. 105-11335; 105-262; 
Eff. June 1, 1992. 

.1602 DELIVERIES TO ARMED FORCES EXCHANGE SERVICES 

Whenever tax exempt deliveries of other tobacco products are made by dealers to armed forces ex- 
change services, the dealer must require a duly receipted invoice or copy thereof from the governmental 
agent designated to accept delivery. 

History Note: Statutory Authority G.S. 105-113.35; 105-262; 
Eff. June I, 1992. 

.1603 SALES OF OTHER TOBACCO PRODUCTS: BY OTHERS: NOT EXEMPT 

If a person engages in the sale of any other tobacco products on a military reservation, regardless of 
the fact that he may have a contract with the Federal Government, whereby the Federal Government 
will receive a commission, flat fee or some other type of compensation on such sales, same does not 
exempt the sale of such products from the excise tax. In such instances, such sales would not be made 
by the Federal Government or an instrumentality thereof. Instead, all such sales are subject to the 
excise tax. 

History Note: Statutory Authority G.S. 1 05- 1 13.35; 105-262; 
Eff. June 1, 1992. 

SECTION .1700 - DESIGNATION OF EXEMPT SALES 

.1701 MUST SELL AS DESIGNATED 

Once other tobacco products are designated as tax exempt under G.S. 105-1 13.35, they must be sold 
in tax exempt transactions. 

History Note: Statutory Authority G.S. 105-113.37; 105-262; 
Eff. June 1, 1992. 

.1702 NO DELAYED OR DEFERRED TAX PAYMENT ALLOWED 

No wholesale dealer or retail dealer or customer of a wholesaler may delay payment of the tax due 
on other tobacco products by failing to pay tax on a sale that is not a designated sale or by overstating 
the quantity of other tobacco products that will be resold in an exempt transaction. 

History Note: Statutory Authority G.S. 105-113.37; 105-262; 
Eff. June 1, 1992. 

.1703 PRIOR WRITrEN NOTIFICATION REQUIRED FROM NC CUSTOMERS 

A wholesale dealer may sell other tobacco products nontaxpaid to a customer who has tax exempt 
sales provided the customer has notified the wholesale dealer in writing that the customer intends to 
resell the items in exempt transactions. Where prior written notification is not provided, the wholesale 
dealer must remit applicable tax. 

History Note: Statutory Authority G.S. 105-1/3.37; 105-262; 
Eff June 1, 1992. 

.1704 FNVOICING REQUIREMENTS 

The wholesale dealer must separately invoice and indicate the other tobacco products designated for 
exempt transactions. For example, sales designated for customers with other tobacco product sales 
outside North Carolina must be invoiced to read, "Designated for Sale Outside North Carolina". 

History Note: Statutory Authority G.S. 105-113.37; 105-262; 
Eff. June 1, 1992. 



7:7 NORTH CAROLINA REGISTER July I, 1992 714 



FINAL RULES 



.1705 REPORTING REQUIREMENTS 

The wholesale dealer selling the designated other tobacco products must provide this Department, as 
part of their monthly other tobacco products excise tax report, such information as required by the 
Secretary. 

History Note: Statutory Authority G.S. 105-11337; 105-262; 
Eff. June 1, 1992. 

.1706 ORIGLNAL SELLER NOT LIABLE FOR TAX 

The wholesale dealer, who relies on the prior written exempt intent of its customer, is not required to 
pay tax on the designated sales when filing a monthly report. However, the wholesaler must pay the 
tax due on all other taxable sales. 

History Note: Statutory Authority G.S. 105-1 13.37; 105-262; 
Eff. June 1, 1992. 

.1707 PENALTIES FOR IMPROPER HANDLING OF DESIGNATED PRODUCT 

The tax liability plus penalties and interest will be held against the wholesaler's customer who sells 
other tobacco products designated exempt in a taxable transaction. Customers violating designation 
procedures should anticipate full penalties to be held on designated products improperly handled and 
are not entitled to the timely payment discount. 

History Note: Statutory Authority G.S. 105-1 13.37; 105-262; 
Eff. June 1, 1992. 

SECTION .1800 - MONTHLY REPORT, UNVOICE, AND RECORD REQUIREMENTS 

.1801 MONTHLY REPORT REQUIREMENTS 

(a) Wholesale dealers and retail dealers, liable for the tax under G.S. 105-113.35, must file monthly 
reports on Form B-A-101 (Monthly Other Tobacco Products Excise Tax Report) with the Secretary 
within twenty days after the close of each month showing transactions for the preceding month. This 
monthly report is required whether or not any tax is shown to be due. The Secretary will provide the 
forms which must be filled out in detail, and any remittance must accompany these reports. 

(b) Failure to file a timely report with tax due for the month will result in the Department of Revenue 
disallowing the 4 percent discount for timely payment and adding a 50 percent penalty and applicable 
interest. 

History Sote: Statutory Authority G.S. 105-113.37; 105-262; 
Eff. June 1, 1992. 

.1802 INVOICING REQUIREMENTS 

(a) Sales invoices of wholesale dealers, whether resident or nonresident, liable for the tax shall indicate 
payment of the excise tax on other tobacco products by the wording "North Carolina Other Tobacco 
Products Tax Paid". 

(b) All sales invoices of nonresident wholesale dealers shall show the point of origin and mode of 
transportation for all shipments of other tobacco products into this State. 

History Sote: Statutory- Authority G.S. 105-113.37; 105-262; 
Eff. June 1, 1992. 

.1803 RECORDS REQUIREMENTS 

Ever," retail dealer and every wholesale dealer and their customers must keep records of inventories, 
purchases, and sales of other tobacco products for at least three years. These records and inventories 
must be maintained separately in such a manner as can be inspected and audited by the Secretary or 
duly authorized representative at any time without having to go through and separate or segregate all 
sales of the taxpayer in order to arrive at the amount of exempt sales or inventories. 

History Sote: Statutory Authority G.S. 105-113.37; 105-262; 
Eff. June 1, 1992. 



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SECTION .1900 - OTHER TOBACCO PRODUCTS VENDING MACHINES 

.1901 IDENTIFICATION AND LOCATION REQUIRED 

(a) No other tobacco products dispensing machine shall be allowed to operate in this State that does 
not have affixed thereto the identification required under the Tobacco Products Tax Article. 

(b) Wholesale dealers or retail dealers owning, leasing, furnishing or operating other tobacco products 
vending machines shall affix to each such machine in a conspicuous place an identification sticker or 
device, which shall show the name, address and telephone number of the operator owning and placing 
such machine on location. The owner of the business wherein such machine is located shall also be 
responsible for seeing that such vending machine is so identified. 

(c) It shall be the duty of any person, firm or corporation operating other tobacco products vending 
machines to have available for the Department information as to the location of any and all vending 
machines so operated by such operator, and make such information available at any time to the Sec- 
retary or his authorized agent. 

History Note: Statutory Authority G.S. 105-65.1; 105-113.17; 105-262; 
Eff. June 1, 1992. 

CHAPTER 7 - SALES AND USE TAX 

SUBCHAPTER 7B - STATE SALES AND USE TAX 

SECTION .0100 - GENERAL PROVISIONS 

.0101 IMPOSITION OF AND LIABILITY FOR COLLECTING AND REMITTING TAX 

(a) All retail sales of tangible personal property are subject to the four percent (three percent until 
July 16, 1991), three percent, two percent or the one percent sales or use tax unless specifically exempt 
by statute. The local sales and use tax rate remains at two percent and applies to those transactions 
which are subject to the general state rate of sales and use tax which increased from three percent to four 
percent effective July 16, 1991. The gross receipts derived by a utility from sales of electricity, piped 
natural gas or intrastate telephone service are subject to the three percent state rate of sales tax, other 
than receipts from the sale of electricity by a municipality whose only wholesale supplier of electric 
power is a federal agency and who is required by contract with that federal agency to make payments 
in lieu of taxes. The statute was amended effective January 1, 1989, to substitute the term "local tele- 
communications services" for the term "intrastate telephone service," as used in the above sentence, 
and to levy the three percent rate of tax only on receipts derived from local telecommunications services 
as defmed by G.S. 105- 120(e). A new subdivision, G.S. 105-164.4 (a) (4c) was added, effective January 
1, 1989, which levies a six and one-half percent sales tax on the gross receipts derived from toll or pri- 
vate telecommunications services, as defined by G.S. 105- 120(e), that both originate from and terminate 
in the state. The provisions of G.S. 105-164.4 (a) (c) do not apply to telephone membership corpo- 
rations as described in Chapter 1 17 of the General Statutes. The gross receipts derived by a utility from 
sales of electricity, piped natural gas and telecommunications services are not subject to the local sales 
or use tax. Wholesale sales are not subject to the tax if made pursuant to the conditions set forth in 
the statutory definition of wholesale sale. Every person making retail sales of taxable tangible personal 
property or charges for taxable utility services is required to register with the department and collect 
and remit all tax due on such sales. 

(b) A use tax at the applicable rate is levied on taxable tangible personal property purchased or re- 
ceived from within or without this state for storage, use or consumption in this state. The liability for 
the tax is not extinguished until it is fully paid, except that payment of the tax to a vendor who charges 
such tax shall relieve the purchaser of further liability with respect to the tax so paid. Where retail sales 
or use tax is due and has already been paid in another state by the purchaser with respect to such tan- 
gible personal property, such tax may be credited against the North Carolina use tax due theTeon. If 
the tax paid in another state is less than the North Carolina use tax due, the difference must be paid in 
this State. No credit shall be allowed for sales or use taxes paid in another state if that taxing juris- 
diction does not grant similar credit for sales taxes paid in North Carolina. Every person outside this 
state who is engaged in business in this state, as hereinafter defined, is required to register with the de- 
partment and collect and remit the tax due on all taxable tangible personal property sold or delivered 
for storage, use or consumption in this state. Every person who purchases from out-of-state vendors 



7:7 NORTH CAROLINA REGISTER July 1, 1992 716 



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any taxable tangible personal property for storage, use or consumption in this state upon which the tax 
has not been fully paid must register with the department and remit the tax due on such purchases. 
A fee is not required for registration by a consumer and a license is not issued in connection with such 
registration; however, all registrants will be furnished report forms to be used in reporting and remitting 
all tax due. 

(c) Effective October 1, 1989, retail sales of motor vehicles are exempt from sales tax and are subject 
to the three percent highway use tax with a minimum tax of forty dollars ($40.00) applicable thereto, 
with certain exceptions, and a maximum tax of one thousand dollars ($1,000.00) on any one motor 
vehicle increasing to one thousand five hundred dollars ($1,500.00) July 1, 1993. Reference is made to 
17 NCAC 7B .4601 for the treatment of sales of motor vehicles. 

(d) Effective January 1, 1990, all retail sales of motor vehicle tires are subject to the one percent scrap 
tire disposal fee. New motor vehicle tires purchased within or without this state for use in this state 
are subject to the one percent fee on their cost price. 

(e) Effective July 1, 1991, retail sales of new tires for motor vehicles, construction equipment, agri- 
cultural and industrial equipment, aircraft, and new tires that are sold to be placed on vehicles offered 
for sale, lease or rental are subject to the one percent scrap tire disposal tax. Purchases of new tires 
from outside North Carolina for storage, use or consumption in North Carolina or to be placed on 
vehicles offered for sale, lease or rental are subject to the one percent rate on the cost price of each new 
tire. 

History Sole: Statutory Authority G.S. 105-164.4; 105-164.5; 105-/64.6; 105-262; 
Eff. February I, 1976; 
Amended Eff. June 1, 1992; October 1. 1991; October 1, 1990; May 1, 1990. 

.0125 FLEA MARKETS 

(a) Every person who sells tangible personal property at a flea market, other than his own household 
personal property, is required to obtain a Merchants Certificate of Registration License to engage in 
and conduct such business. When making sales at the flea market such person shall conspicuously 
display the license or shall display a receipt from the Department of Revenue showing that he has ap- 
plied for the license in cases where he has not yet received the license. Every person who sells only 
his own household personal property at a flea market must certify in writing to the person from whom 
he leases or rents space that he will seli only his own household personal property and when selling 
tangible personal property at the flea market must conspicuously display a copy of the written state- 
ment. A person who leases or rents space to others at a flea market may not lease or rent space unless 
the person who wishes to lease or rent the space furnishes evidence that he has obtained or applied for 
the Merchants Certificate of Registration License or furnishes a written statement that the property 
which he will sell at the flea market will consist only of his own household personal property. Eor the 
purpose of this Rule, the term "flea market" means a place or location where space is leased or rented 
to persons for the purpose of selling tangible personal property. 

(b) A person who leases or rents space to others at a flea market shall keep records of retailers to 
whom he has leased or rented space at the flea market. Such records shall include: 

(1) the date, 

(2) the name and address of the lessee, 

(3) the sales and use tax registration number of the lessee or the receipt number and the name of the 
Revenue Officer issuing the receipt in cases where the lessee has applied for but has not yet re- 
ceived the Merchants Certificate of Registration License, and 

(4) a copy of the certified statement of vendors who sell only their own household personal property 
wherever applicable. 

(c) Any person required to keep records or supply information who willfully fails to keep such records 
or supply information shall, in addition to other penalties provided by law, be guilty of a misdemeanor 
and shall be punished by imprisonment not to exceed 30 days, or by a fine not to exceed two hundred 
dollars ($200.00), or by both such fine and imprisonment. If any officer, agent, and/or employee of 
any person, firm or corporation shall willfully fail, refuse or neglect to make out, file, and/or deliver any 
reports or blanks, as required by law, or to answer any question therein propounded, or to knowingly 
and willfully give a false answer to any question wherein the fact inquired of is within his knowledge, 
or upon proper demand to exhibit to the Secretary of Revenue or her duly authorized representatives 
any book, paper, account, record or memorandum of such person, firm, or corporation in his pos- 
session and/or under his control, shall be guilty of a misdemeanor and fined not less than one hundred 
dollars ($100.00) nor more than one thousand dollars ($1,000) for each offense. The willful failure, 



717 7:7 NORTH CAROLINA REGISTER July I, 1992 



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refusal, or neglect to observe and comply with any order, direction, or mandate of the Secretary of 
Revenue, or to perform any duty enjoined by Subchapter 1 of the Revenue Act by any person, firm, 
or corporation, or any officer, agent, or employee thereof, shall, for each day such failure, refusal or 
neglect continues constitute a separate and distinct offense. 

History Note: Statutory Authority G.S. 105-164.4; 105-164.6; 105-262; 
Eff February 1, 1986; 
Amended Eff. June 1, 1992. 

SECTION .0200 - GENERAL APPLICATION OF LAW TO MANUFACTURING AND 

LNDUSTRIAL PROCESSING 



.0201 TAX ON MANUFACTURING AND PROCESSING MACHLNERY 

(a) Sales of mill machinery, mill machinery parts and accessories to manufacturing industries and 
plants are taxable at the rate of one percent subject to a maximum tax of eighty dollars ($80.00) per 
article. Manufacturers' Certificates, Form E-575, are available from the sales and use tax division, 
North Carolina Department of Revenue, for use in connection with such sales as the vendor's authority 
to apply the one percent rate of sales or use tax, with a maximum tax of eighty dollars ($80.00) per 
article. 

(b) Sales to contractors and subcontractors purchasing mill machinery or mill machinery parts and 
accessories for use by them in the performance of contracts with manufacturing industries and plants 
and sales to subcontractors purchasing mill machinery or mill machinery parts and accessories for use 
by them in the performance of contracts encompassed in such contracts with manufacturing industries 
and plants are subject to the one percent rate of tax, with a maximum tax of eighty dollars ($80.00) 
per article where applicable. Such mill machinery or mill machinery parts and accessories must be for 
use by a manufacturing industry or plant in the production process, as the term "production" is defined 
in 17 NCAC 7B .0202(a)(1), to qualify for the one percent rate of tax with a maximum tax of eighty 
dollars ($80.00) per article when purchased by such contractors or subcontractors. Contractors and 
subcontractors may obtain Contractor's and Subcontractor's Certificate, Form E-580, from the Sales 
and Use Tax Division, North Carolina Department of Revenue, to be executed by them and furnished 
to their vendors in connection with such purchases as the vendor's authority to apply the one percent 
rate of tax thereto. 

History Note: Statutory Authority G.S. 105-164.4; 105-164.6; 105-262; 105-264; 
Eff. February 1, 1976; 
Amended Eff. June 1, 1992; May 11, 1979; September 30, 1977. 

SECTION .0300 - SPECIFIC TANGIBLE PERSONALTY CLASSIFIED FOR USE BY 

INDUSTRIAL USERS 



.0301 MILL MACHINERY 

Sales of mill machinery, mill machinery parts and accessories to manufacturing industries and plants 
for industrial processing are subject to the one percent sales or use tax, subject to a maximum tax of 
eighty dollars ($80.00) per article where applicable. The following items, when sold to manufacturing 
industries and plants for use in their manufacturing process, are considered mill machinery, mill ma- 
chinery' parts and accessories within the meaning of the Sales and Use Tax Article: 

(1) motors, pulleys, motor bases but not foundations, gears, belts, chains and textile rope drives, line 
shafting with hangers and pulleys, and other types and makes of drives connecting motors to the 
driven machinery for direct production processes; 

(2) controls for motors consisting of: 

(a) magnetic starters, push button stations, pressure and float switches, and other types of relays 
operating motor controllers; 

(b) compensators of auto transformer starters; 

(c) thermal relay types of motor starters; 

(d) drum controllers and resistors; 

(e) disconnecting switches when built as a part of magnetic starters; 

(f) oil switches; 



7:7 NORTH CAROLINA REGISTER July 1, 1992 718 



FINAL RULES 



(g) synchronous motor controllers if a part of production machinery, but not otherwise; 

(3) repair and renewal parts for motors and motor controllers as production machinery; 

(4) steam engines, gasoline engines, diesel engines, motor generators; 

(5) pumps for industrial processes, air compressors, air hoses and nozzles, and pipe for carrying 
compressed air from compressor to hose for cleaning machinery and equipment; pumps used to 
remove waste of a manufacturing process; 

(6) moistening or humidifying equipment on or adjacent to machinery when the function of this 
equipment is the conditioning of materials for processing; This includes piping located on or im- 
mediately adjacent to mill machinery and which supports and supplies water to moistening or 
humidifying equipment, but does not include general piping in the mill supplying water to 
moistening or humidifying equipment. General piping in the mill is taxable at the state rate of four 
percent (three percent until July 16, 1991) and any applicable local sales or use tax; 

(7) that portion of the purchase price of general air conditioning systems allocated to conditioning 
materials for processing; 

(8) boiler room machinery with flue cleaners, and brushes for boiler tubes, when the boilers are 
operated for power generation or supplementary thereto in connection with manufacturing proc- 
esses; stokers, shovels, and other equipment used in boiler rooms for feeding fuels and water to 
power units; Smoke stacks which are attached to and are a part of the boilers; Equipment as used 
here does not include storage places for fuels and water, or reserve tanks, bins or other similar items 
located either inside or outside power rooms or buildings. Storage tanks, bins or other facilities 
for water, fuel, raw materials or manufactured products are not considered as mill machinery or 
accessories to such machinery' and are therefore subject to the four percent (three percent until July 
16, 1991) state tax and any applicable local sales or use tax. However, tanks, bins and other fa- 
cilities in which mixing, blending or other processing action takes place are classified as mill ma- 
chinery or accessories and are therefore subject to the one percent rate of tax when such items are 
used in the manufacturing operation; 

(9) conveyors, hoists and hoist cables, (but not track or other fixtures determined to be a part of and 
which lend support to the building or structure) roving trucks and other materials handling 
equipment, including lift trucks, used in individual mills for transporting materials or spindles or 
like articles from inventory to the manufacturing process, transporting materials during temporary 
interruptions in the manufacturing process in the mill or moving the finished product from the 
manufacturing or processing line into shipping and storage areas or yards at the individual mill or 
plant; Included for the purpose of this Paragraph are work tables, with seats and other accessories 
thereto at which employees work on materials in process; racks, bins, canvas baskets and similar 
equipment for handling goods in process; and roving cans; 

(10) hand tools designed for use on a particular machine, such as special wrenches supplied by makers 
of textile machinery for special machines; hammers, screwdrivers, blow torches, soldering irons, 
rubber mallets and similar general-use tools and machines used in repair shops to repair mill ma- 
chinery or along the production line to perform work necessary as a part of the manufacturing 
processes and all files for general and specific use in a mill or manufacturing plant; 

(11) metal-cutting and wood-cutting lathes and their accessories in all kinds of manufacturing plants, 
factories and mills; band saws, circular saws, all hack saws and blades; shapers and accessories, 
jointers, planers; drill presses; welding machines; torches; and all other manufacturing machinery 
and accessories thereto; spinners' whisks, comber brushes and other brushes, in hosiery mills and 
cotton mills, designed for use on particular machines; polishing wheels, sanding machines and 
drums, portable or stationary; sandpaper, emery cloth, rubbing tow, paint brushes and filler 
brushes, steel wool, rubbing waste or cloths or other hand or machine devices for polishing or 
other finishing processes on a manufactured product; oils and lubricants for use in lubricating 
production machinery; and wiping cloths, cleaning compounds and paint for mill machinery, mill 
machinery parts and accessones; chemicals or other materials used to clean ingredient or compo- 
nent parts of manufactured products but which do not enter into or become an ingredient or 
component part of property being manufactured; 

(12) dyehouse thermometers, recording charts for mill machinery, hank scales and yarn scales; and 
tachometers and other testing devices used for checking performance or output of machinery; 

( 13) air compressors, steam hose and air hose for cleaning mill machinery; 

( 14) cloth pencils and mill crayons for marking cloth, lumber or other ingredients in process; 

(15) dynamite and other explosives used in mining and quarrying whether or not such mining or 
quarrying is carried on as a regular or continuous business within itself, or as a part ot a manu- 
facturing industry; Sales of explosives used in excavation in connection with building or con- 



79 7:7 NORTH CAROLINA REGISTER July 1, 1992 



FINAL RULES 



struction are subject to the four percent (three percent until July 16, 1991) state and any applicable 
local sales or use tax; 

(16) machinery and equipment used in packaging manufactured products as a part of the manufac- 
turing process; 

( 1 7) pollution abatement equipment used in the manufacturing process. 

History Note: Statutory Authority G.S. 105-1644; 105-164.6; 105-262; 
Eff. February I, 1976; 
Amended Eff. June 1, 1992; October 1, 1991; January 3, 1984. 

SECTION .0700 - SPECIFIC INDUSTRY PURCHASES 



.0713 ELECTROPLATING LNDUSTRIES 

(a) Receipts derived from electroplating tangible personal property belonging to users or consumers 
are not subject to sales or use tax. However, such persons are liable for remitting the four percent 
(three percent until July 16, 1991) state tax and any applicable local sales or use tax on all metal and 
other tangible personal property purchased for use in the operation of their businesses. 

(b) Receipts derived from electroplating tangible personal property for persons who will sell same at 
retail or wholesale are not subject to sales or use tax. Persons doing this type of electroplating are 
classified as manufacturers and their purchases of metal and other tangible personal property which 
enters into or becomes an ingredient or component part of property being electroplated for sale are 
exempt from tax under the provisions of G.S. 105- 164. 13(8). Purchases by such persons of items which 
are properly classified as mill machinery or mill machinery parts and accessories are subject to the one 
percent rate of tax with a maximum tax of eighty dollars ($80.00) per article as set forth by G.S. 
105-164.4(a)(ld)b. 

History Note: Statutory Authority G.S. 105-164.4; 105-164.6; 105-164.13; 105-262; 
Eff. February 1, 1976; 
Amended Eff. June I, 1992; October I, 1991. 

SECTION .1100 - SALES OF BULK TOBACCO BARNS: FARM MACHINES AND 

MACHLNERY 



.1101 FARM MACHINES: MACHINERY: BULK TOBACCO BARNS 

(a) Sales to farmers of machines and machinery, and parts therefor or accessories thereto for use by 
them in planting, cultivating, harvesting or curing of farm crops including nursery stock, or to dairy 
operators, poultry farmers, egg producers, and livestock farmers for use by them in the production of 
dairy products, poultry products, eggs, or livestock are subject to the one percent rate of tax with a 
maximum tax of eighty dollars ($80.00) per article of merchandise. Sales of machines and machinery, 
and the parts therefor or accessories thereto, to farmers for any purpose or use not defined in this Rule, 
or to any person other than a farmer as herein defined, even though for a use or purpose herein defined, 
are subject to the four percent (three percent until July 16, 1991) state and any applicable local sales 
or use tax without limitation. In other words, to qualify for the one percent rate of tax and the eighty 
dollar ($80.00) maximum tax per article, the transaction must be a sale of a machine or machinery, or 
parts therefor or accessories thereto, to a farmer for one of the uses or purposes herein defined and 
unless all three conditions are met, the sale is subject to the four percent (three percent until July 16, 
1991) state and any applicable local sales or use tax without limit. The following sales of tangible 
personal property to farmers qualify for the one percent rate of tax with an eighty dollar ($80.00) 
maximum tax per article of merchandise: 

(1) Sales to farmers of bulk tobacco barns, racks and all parts and accessories thereto and similar 
apparatus used for the curing and drying of any farm product are subject to the one percent rate 
of tax with a maximum tax of eighty dollars ($80.00) per article of merchandise. The sale to 
farmers of a bulk curing barn with perforated floors, curers, racks, fans, motors, dampers and 
flues will constitute the sale of one article and an eighty dollar ($80.00) maximum tax will be 
applicable thereto. 



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(2) Sales to farmers of grain, feed, or soybean storage facilities and accessories thereto, whether or 
not dryers are attached, and all similar apparatus and accessories thereto for the storage of grain, 
feed or soybeans. 

(3) Sales to farmers of commercially manufactured portable swine equipment or facilities and ac- 
cessories thereto; and sales to farmers for installing on the farm of all bulk feed handling equip- 
ment which has been designed and constructed to be used for raising, feeding, and the 
production of Livestock and poultry products and all cages used in the production of livestock 
and poultry products are subject to the one percent rate of tax with a maximum tax of eighty 
dollars ($80.00) per article of merchandise. The sale of the total number of poultry cages to be 
served by the same automatic feeder, automatic waterer or automatic egg collector constitutes 
the sale of a single article that is separate and distinct from a feeder, waterer or egg collector. 
The statute was expanded to include sales to farmers of commercially manufactured swine, 
livestock or poultry equipment or facilities and accessories thereto. Effective September 1, 1987, 
this Subparagraph is rescinded as a result of a statutory amendment to G.S. 105-164. 13(4c). 
See 17 NCAC 7B .1 123 for information in regard to the exemption from sales and use taxes for 
sales of articles described in this Subparagraph. 

(4) Sales of containers to farmers and producers for use in the planting, producing, transporting or 
delivery of their products are subject to the one percent rate of tax with a maximum tax of eighty 
dollars (S80.00) per article of merchandise when such containers do not go with and become a 
part of the sale of the product at wholesale or retail. 

The Farmer's Certificate, Form E-599, may completed by a farmer and accepted by a retail or wholesale 
merchant as the authority for applying the one percent rate of tax, maximum eighty dollars ($80.00) 
per article, to the sale or purchase of tangible personal property which is farm machinery or parts and 
accessories thereto, as defined by Statute and in this Rule. The use of the certificate is optional. It is 
to be used only by farmers in the manner and for the purpose described on the back side of the certif- 
icate. 

(b) The following are examples of sales of machines and machinery and the parts therefor and ac- 
cessories thereto, which qualify for the one percent rate of tax with the eighty dollars ($80.00) maximum 
when sold to general farmers for use by them in planting, cultivating, harvesting or curing farm crops: 



(1) 


tractors, 


(2) 


plows, 


(3) 


harrows, 


(4) 


cultivators, 


(5) 


mowers, 


(6) 


planters, 


(7) 


corn pickers and snappers 


(8) 


manure spreaders, 


(9) 


manure loaders, 


(10) 


harvester threshers, 


(11) 


rotary tillers, 


(12) 


fertilizer distributors, 


(13) 


wind-rowers, 


(14) 


forage blowers, 


(15) 


stalk cutters. 


(16) 


seeders, 


(17) 


grain loaders, 


(18) 


harvesters, 


(19) 


cotton pickers, 


(20) 


rotary hoes, 


(21) 


com and hay elevators, 


(22) 


tobacco curers, 


(23) 


tobacco flues, 


(24) 


tobacco trucks or slides. 


(25) 


wagons. 


(26) 


non-highway trailers, 


(27) 


mechanical rakes, 


(28) 


balers. 


(29) 


rod weeders. 


(30) 


combines, 



721 7:7 NORTH CAROLINA REGISTER July I, 1992 



FINAL RULES 



(31) tobacco transplanters, 

(32) shredders for corn stalks, 

(33) power loader lifts, 

(34) platform carriers, 

(35) portable insecticide sprayers, 

(36) chain saws, 

(37) motor oils, greases, lubricants and anti-freeze; 

(38) hydraulic fluids. 

(c) Examples of items which are subject to the four percent (three percent until July 16, 1991) state 
and any applicable local sales or use tax when sold to general farmers: 

(1) lawn mowers; 

(2) snow plows; 

(3) oil storage tanks and fittings; 

(4) drainage tile; 

(5) paint, cleaning compounds and brushes; 

(6) baler twine; 

(7) tobacco sticks and tobacco twine; 

(8) tools for maintaining machinery and equipment; 

(9) plastic mulch, plant bed covers and tobacco canvas. 

(d) The lists in Paragraphs (b) and (c) of this Rule are not intended to be exclusive, but are for il- 
lustrative purposes only. If there is any question whatever as to the tax status of any item which does 
not appear therein, such question should be submitted to the secretary, together with a detailed state- 
ment of the business of the purchaser, the design and structure of the article, and its use, to the end that 
the applicable rate of tax may be correctly determined. 

(e) The word farmer as used in this Rule includes dairy operators, poultry farmers, egg producers, 
livestock farmers, nurserymen, greenhouse operators, orchardmen and other persons coming within the 
generally accepted definition of the word. It does not include a person who merely cultivates a garden 
for personal use. 

History Note: Statutory Authority G.S. 1 05-164.4; 105-164.6; 105-262; 
Eff February I, 1976; 
Amended Eff. June I, 1992; October I, 1991; February I, 1988; March 1, 1984. 

.1123 CERTAIN SALES TO COMMERCIAL LIVESTOCK AND POULTRY FARMERS 

(a) Sales to commercial livestock and poultry farmers of materials to be used exclusively in the con- 
struction, repair or improvement of any enclosure or structure specifically designed, constructed, and 
used for commercial purposes for housing, raising, or feeding livestock and poultry or for housing 
equipment necessary for these activities, including work space used solely for these commercial activ- 
ities, are exempt from sales and use taxes. Likewise, sales of materials for the above described uses to 
contractors performing contracts with commercial livestock and poultry farmers and subcontractors 
performing contracts with general contractors who have contracts with commercial livestock and 
poultry farmers shall be exempt. The exemption from tax extends only to building materials, as such, 
which are used in the construction, repair or improvement of such enclosures or structures and which 
become a part of such enclosures or structures. The exemption does not extend to sales of equipment 
and machinery used to equip such enclosures or structures prior to September 1, 1987. Effective Sep- 
tember 1, 1987, the exemption was expanded to include sales of commercially manufactured swine, 
livestock, and poultry facilities to be used for commercial purposes for housing, raising, or feeding of 
swine, livestock, or poultry or for housing equipment necessary for these commercial activities; building 
materials, supplies, fixtures, and equipment to be used in the construction, repair, or improvement and 
that become a part of an enclosure or structure specifically designed, constructed and used for such 
above commercial purposes; and commercially manufactured swine, livestock, and poultry equipment, 
parts and accessories therefor placed or installed in or affixed to such facilities, enclosures, or structures. 

(b) For the purpose of this Rule, the words "swine, livestock and poultry" include swine, cattle, 
horses, mules, sheep, chickens, turkeys and other similar domestic animals and fowl usually held or 
produced on a farm for commercial purposes. The word "commercial" shall mean "held or produced 
for income or profit." It does not include one who merely produces swine, livestock or poultry for 
one's personal use or consumption and not for sale. Commercial swine, livestock or poultry farmers, 
and contractors performing contracts with commercial swine, livestock or poultry farmers and sub- 
contractors performing contracts with general contractors who contract with commercial swine, live- 



7:7 NORTH CAROLINA REGISTER July 1, 1992 722 



FINAL RULES 



stock or poultry farmers may obtain Commercial Swine, Livestock and Poultry Farmers' Certificate, 
Form E-599S, from the Sales and Use Tax Division, North Carolina Department of Revenue, to be 
executed by them and furnished to their vendors in connection with such purchases as the vendor's 
authority to exempt such purchases from sales and use taxes. 

History Sote: Statutory Authority G.S 105-1644; 105-164.6; 105-262; 
Eff February 1,1987; 
Amended Eff. June I, 1992; February I, 1988. 

SECTION .1500 FINANCE COMPANIES: FINANCE CHARGES AND CARRYING 

CHARGES 



.1501 FINANCE COMPANIES 

(a) If a finance company maintains a regular place of business wherein repossessed tangible personal 
property is sold or placed on display for sale as an adjunct to the principal business of the finance 
company, such finance company must register with the department and collect and remit the applicable 
state and local tax on its sales. 

(b) If a finance company, as an incident only of its finance business, has occasion, from time to time, 
to repossess articles of tangible personal property upon which payments have become delinquent and 
sells such tangible personal property either at public auction or at private sale, such sales shall be 
deemed occasional sales and are not subject to the tax. 

History Sote: Statutory Authority G.S. 105-164.3; 105-164.4; 105-262; 
Eff. February 1 . 1976; 
Amended Eff June 1, 1992; October I, 1991. 

SECTION .1600 - SALES TO OR BY HOSPITALS: EDUCATIONAL: CHARITABLE OR 
RELIGIOUS INSTITUTIONS: ETC.. AND REFUNDS THERETO 



.1602 REFUNDS TO LNSTITUTIONS: ETC. 

(a) Subject to the terms and conditions herein set forth, hospitals not operated for profit, educational 
institutions not operated for profit, churches, orphanages, and other charitable or religious institutions 
or organizations not operated for profit are entitled to semiannual refunds of sales and. or use taxes paid 
by them in North Carolina on their direct purchases of tangible personal property used in carrying on 
their nonprofit work. For refund purposes, purchases by contractors of building materials, supplies, 
fixtures and equipment which become a part of or are annexed to any building or structure being 
erected, altered or repaired under contract with any such institution or organization and which are used 
in carrying on the nonprofit activities of such institution or organization are deemed to be direct pur- 
chases. The provisions of this Rule apply to out-of-state institutions and organizations to the extent 
of sales or use taxes paid by them in this state on purchases of tangible personal property for use in 
earning on charitable, religious or educational activities within or without this state which are not for 
profit. 

(b) In addition to the provisions in (a) of this Rule for refunds of sales and or use taxes paid by 
hospitals not operated for profit, all other hospitals not specifically excluded herein are entitled to 
semiannual refunds of sales and or use taxes paid by them on medicines and drugs purchased for use 
in carrying out the work of such hospitals. 

(c) The refund provisions contained in this Rule do not apply to the tax on taxable sales by the in- 
stitutions and organizations named in Paragraph (a) of this Rule and no part thereof shall be refunded 
or claimed as a refund. Institutions and organizations properly registered for sales and use tax purpose 
may purchase the tangible personal property which they resell without paying tax thereon to their 
suppliers provided they have furnished such suppliers with properly executed certificates of resale, Form 
E-590. Certificates of resale may not be used by any institution or organization named in this Rule, 
or by any other vendee, in making purchases of tangible personal property to be used or consumed by 
such purchaser. 

(d) Refund claims of the organizations and institutions named in Paragraph (a) of this Rule must 
be filed with the North Carolina Department of Revenue covering the first six months of the calendar 
year on or before the 15th day of October following the close of the fust six months period. Refund 



723 7:7 NORTH CAROLINA REGISTER July 1, 1992 



FINAL RULES 



claims covering the second six months of the calendar year must be filed on or before the 1 5th day of 
April following the close of the second six months period. Refund claims filed after the due date shall 
be subject to the following penalties for late filing: 

(1) refund claims filed within 30 days after the due date, 25 percent; 

(2) refund claims filed more than 30 days after the due date but within six months of the due date, 
50 percent. 

The amount of the penalties in this Rule shall be deducted from the face amount of the refund due the 
claimant. The statute prohibits the payment of any refund claim not filed within the stipulated time. 

(e) All refund claims must be substantiated by proper documentary proof and only the taxes actually 
paid by the claimant during the period for which the claim for refund is filed may be included in the 
claim. Any local sales or use taxes included in the claim must be separately stated in the claim for re- 
fund. In cases where more than one county's tax has been paid, a breakdown must be attached to the 
claim showing the amount of each county's local tax separately. 

(f) As to taxes paid on the claimant's purchases for use, other than those made by contractors per- 
forming work for the claimant, invoices or copies of invoices showing the property purchased, the cost 
thereof, the date of purchase and the amount of state and local sales or use tax paid during the refund 
period will constitute proper documentary proof. 

(g) To substantiate a refund claim for sales or use taxes paid on purchases of building materials, 
supplies, fixtures and equipment by its contractor, the claimant must secure from such contractor cer- 
tified statements setting forth the cost of the property purchased from each vendor and the amount of 
state and local sales or use taxes paid thereon. In the event the contractor makes several purchases from 
the same vendor, such certified statement must indicate the invoice numbers, the inclusive dates of the 
invoices, the total amount of the invoices and the sales and use taxes paid thereon. Such statement 
must also include the cost of any tangible personal property withdrawn from the contractor's warehouse 
stock and the amount of state and local sales or use tax paid thereon by the contractor. Similar certified 
statements by his subcontractors must be obtained by the general contractor and furnished to the 
claimant. Any local sales or use taxes included in the contractor's statements must be shown separately 
from the state sales or use taxes. The contractor's statements must not contain sales or use taxes paid 
on purchases of tangible personal property by such contractors for use in performing the contract which 
does not annex to, affix to or in some manner become a part of the building or structure being erected, 
altered or repaired for the institutions and organizations named in Paragraph (a) of this Rule. Exam- 
ples of property on which sales or use tax has been paid by the contractor and which should not be 
included in the contractor's statement are scaffolding, forms for concrete, fuel for the operation of ma- 
chinery and equipment, tools, equipment repair parts, equipment rentals and blueprints. 

(h) The refund provisions set forth in this Rule apply only to institutions and organizations described 
in Paragraphs (a) and (b) of this Rule, but do not apply to nonprofit fraternal, civic or patriotic or- 
ganizations, notwithstanding that such organization may perform certain charitable functions. The 
refund provisions set forth in this Rule do not apply to organizations, corporations and institutions 
which are owned and controlled by the United States, the state or a unit of local government except 
hospital facilities created under Article 12 of Chapter 131 of the General Statutes and nonprofit hospi- 
tals owned and controlled by a unit of local government that elect to receive semiannual refunds under 
G.S. 105-154. 14(b) instead of annual refunds under G.S. 105- 164. 14(c). Any nonprofit hospital owned 
and controlled by a unit of local government may submit a written request to receive semiannual re- 
funds under G.S. 105-164. 14(b) instead of annual refunds under G.S. 105-164. 14(c). The request is 
effective beginning with the six-months refund period following the date of the request and applies to 
sales or use taxes paid on or after the first day of the refund period for which the request is effective. 

(i) The refund provisions of this Rule are not applicable to sales taxes incurred by employees on 
purchases of food, lodging or other taxable travel expenses paid by employees and reimbursed by the 
type institutions and organizations named in Paragraph (a) of this Rule. Such expenses are personal 
to the employee since the contract for food, shelter and travel is between the employee and the provider 
and payment of the tax is by the employee individually and personally. Such institutions and organ- 
izations have not incurred and have not paid any sales tax liability. In such cases, it has chosen to re- 
imburse a personal expense of the employee. The refund provisions of this Rule do not apply to sales 
tax paid by the organizations and institutions named in Paragraph (a) of this Rule on charges by a 
utility for electricity, piped natural gas and local, toll or private telecommunications services; to the 
occupancy taxes levied and administered by certain counties and cities in this state; to the highway use 
taxes paid on the purchase, lease or rental of motor vehicles; to the scrap tire disposal fee levied on new 
motor vehicle tires; or to the scrap tire disposal tax levied on new motor vehicle tires. Such taxes 
should not be included in any claim for refund tiled by such institutions and organizations. 



7:7 NORTH CAROLINA REGISTER July I, 1992 724 



FINAL RULES 



History Note: Statutory Authority G.S. 105-164.14; 105-262; 105-264; 
Eff. February I, 1976; 
Amended Eff June 1. 1992; October I, 1991; May 1, 1990; February I, 1988. 

SECTION .1900 - TIRE RECAPPERS AND RETREADERS: TIRE AND TUBE REPAIRS 



.1905 SALES TO TIRE RECAPPERS 

(a) Sales to tire recapppers of camelback or other rubber products, cement and rubber solvent, cord 
fabric, wheel weights and other items of a similar nature which enter into or become an ingredient or 
component part of the recapped tires or are attached to and delivered with the tires to the customer are 
exempt from tax. 

(b) The gross receipts derived by a utility from sales of electricity and piped natural gas to tire 
recappers for use in connection with the operation of the recapping plant are subject to the three per- 
cent state rate of tax. Sales of other fuel to tire recappers for use in connection with the operation of 
the recapping plant are subject to the one percent rate of tax. 

(c) Sales to tire recappers of mill machinery, or parts and accessories therefor, for use exclusively in 
the recapping process are subject to the one percent rate of tax, with a maximum tax of eighty dollars 
($80.00) per article. Sales to contractors and subcontractors of mill machinery or mill machinery parts 
and accessories for use by them in the performance of contracts with manufacturing industries and 
plants and sales to subcontractors purchasing mill machinery or mill machinery parts and accessories 
for use by them in the performance of contracts encompassed in such contracts with manufacturing 
industries and plants are subject to a one percent rate of tax, with a maximum tax of eighty dollars 
($80.00) per article where applicable. Such mill machinery or mill machinery parts and accessories 
must be for use by tire recappers in the production process, as the term "production" is defined in 17 
NCAC 7B .0202(a)(1), to qualify for the one percent rate of tax with a maximum tax of eighty dollars 
($80.00) per article when purchased by such contractors or subcontractors. Contractors and subcon- 
tractors may obtain Contractor's and Subcontractor's Certificate, Form E-580, from the Sales and Use 
Tax Division, North Carolina Department of Revenue, to be executed by them and furnished to their 
vendors in connection with such purchases as the vendor's authority to apply the one percent rate of 
tax thereto. The following items when sold to tire recappers for use exclusively in the recapping process 
are considered to be mill machinery or mill machinery parts and accessories within the meaning of the 
Sales and Use Tax Article: 

( 1 ) wire brushes; 

(2) mold lube; 

(3) curing tubes and rims; 

(4) molds and matrices; 

(5) buffing equipment; 

(6) buffing discs; 

(7) buffing rasps; 

(8) rasp teeth; 

(9) crayon for marking tires; 

( 10) tire trimmers; 

(11) boilers; 

(12) tire handling equipment used exclusively between the beginning and ending steps of the 
recapping process; 

(13) inspection spreaders used exclusively to inspect casing being recapped; 

(14) spinners used for applying cement used on casings being recapped; 

(15) pre-condensing tanks for air lines used for applying cement, dusting bulled casings, and inflating 
curing tubes; 

(16) casing balancers used exclusively in balancing casing to be recapped; 

(17) tread builders used to apply tread rubber to casmg being recapped; 

(18) air compressors used exclusively in retreading or recappmg process; 

(19) dust collectors; 

(20) knives, stitchers, rollers, shears, awls, splicing tools, etc., used to perform work on the ingredient 
material or the manufactured product; 

(21 ) thermometers, pyrometers, and durometers used in testing mold heat and cure hardness of the 
rubber used in the recapping process; 



725 7:7 NORTH CAROLINA REGISTER July I, 1992 



FINAL RULES 



(22) bagging and debagging equipment; 

(23) sprayers used exclusively in the recapping process; 

(24) matrix loaders; 

(25) steam traps and valves used in steam lines for curing molds; 

(26) mold cleaners. 

(d) The following are examples of items which are subject to the four percent (three percent until July 
16, 1991) state and any applicable local sales or use tax when sold to tire recappers for use or con- 
sumption: 

(1) motor vehicle jacks; 

(2) tire tools not used between the beginning and ending recapping processes; 

(3) balancing machinery used after recapping process is completed; 

(4) equipment used to remove tires from the rim before the recapping process begins; 

(5) administrative equipment such as office supplies, file cabinets and other office equipment; 

(6) cleaning compound for janitorial and sanitary purposes; 

(7) uniforms for employees; 

(8) advertising materials; 

(9) lubricants, repair parts and accessories for motor vehicles; 

(10) inspection bags; 

(11) gloves. 

(e) The lists in (c) and (d) of this Rule are not intended to be exclusive but are for illustrative purposes 
only. If there is any question as to the tax status of any item not on the lists, it may be submitted to 
the Secretary of Revenue for a determination as to the applicable rate of tax. 

History Note: Statutory Authority G.S. 105-164.4; 105-164.6; 105-262; 105-264; 
Eff. February I, 1976; 
Amended Eff. June 1. 1992; October 1, 1991; May J, 1985; May 11, 1979. 

.1906 SCRAP TIRE DISPOSAL FEE 

(a) Between January 1, 1990 and June 30, 1991, a scrap tire disposal fee of one percent is levied on 
the sales price of each retail sale of a new motor vehicle tire. The fee is not due on tires sold for any 
implement of husbandry, farm tractor, road construction or maintenance machinery or equipment, 
special mobile equipment, any vehicle designed pnmarily for use in work off the highway, or a manu- 
factured home. "Sales price" includes the amount of any federal manufacturer's excise tax imposed 
on such tires. The one percent fee is imposed on tire retailers' net taxable sales of new motor vehicle 
tires and it is to be collected and paid in the same manner as the State sales tax. However, the fee is 
not a part of the tax base on which the sales tax is to be computed. It does not apply to: 

(1) sales of recapped tires, 

(2) receipts from the lease or rental of tires, 

(3) sales of tires for resale, 

(4) the sale of used motor vehicle tires, 

(5) factory installed tires which after use are replaced with new tires and then sold at retail, 

(6) tires which are sold to motor vehicle dealers to be mounted on and sold as a part of a new or 
used motor vehicle, or 

(7) sales to the United States Government or any agency thereof. 

(b) Motor vehicle tires purchased outside of North Carolina for use in this State will be subject to 
the one percent fee on the cost price of each new tire to be paid in the same manner as the State use 
tax under G.S. 105-164.6. Every person located outside this State engaged in business in this State is 
required to register with the Department and collect and remit the scrap tire disposal fee on all retail 
sales of new motor vehicle tires sold or delivered for storage, use or consumption m this State. The 
exemptions and exclusions under the Sales and Use Tax Law and the "storage and use exclusion," as 
well as the lower rates of tax imposed by the Sales and Use Tax Law, do not apply to this fee levy. 
The refund provisions of G.S. 105-164. 14(a), (b) and (c) do not apply to this fee levy. 

(c) The fee levy constitutes a separate collection program from sales tax for the Sales and Use Tax 
Division and is to be reported on the Waste Tire Disposal Fee Report, Form E-500 G, which is pro- 
vided by the Department. 

(d) Every person engaged in the business of selling new motor vehicle tires at retail or making pur- 
chases subject to the scrap tire use fee and whose total scrap tire fee liability is consistently less than 
twenty thousand dollars ($20,000) per month must file on or before the 15th day of each calendar 
month a report for the previous month and remit the taxes due with such report. When the total 



7:7 NORTH CAROLINA REGISTER July I, 1992 726 



FINAL RULES 



amount of the scrap tire disposal fee for which a taxpayer is liable is consistently less than twenty-five 
dollars ($25.00) per month, such taxpayer may file a quarterly return with remittance of the tax on or 
before the 15th day of January, April, July and October of each year for the preceding three months' 
period upon making application to the Secretary to use such basis of reporting. A report must be filed 
for each reporting period. Reports for the periods in which no sales are made should be marked "no 
sales." A taxpayer who is consistently liable for at least twenty thousand dollars ($20,000) per month 
in scrap tire disposal fees shall, as directed by the Secretary of Revenue, file a return on a semimonthly 
basis. These returns are due within ten days after the end of each semimonthly period. The semi- 
monthly reporting periods are the first through the 15th day of each month and the 16th through the 
last day of each month. In determining the amount of tax due from a taxpayer for a reporting period, 
the Secretary shall consider the total amount due from all places of business owned or operated by the 
same person as the amount due for that period. 

History Sole: Statutory Authority G. S. 105-262; 105-264; 130A-309.55; 130A-309.56; 
Eff. October I, 1990; 
Amended Eff. June I. 1992. 

.1907 SCRAP TIRE DISPOSAL TAX 

(a) Effective July 1, 1991, the Scrap Tire Disposal Fee was moved to Article 5B of Chapter 105 of 
the General Statutes and became the Scrap Tire Disposal Tax. The definitions contained in G.S. 
105-164.3 of the Sales and Use Tax Statute are applicable to Article 5B except that the term "sale" does 
not include "lease or rental." The exemption for tires leased or rented was removed effective July 1, 
1991. Under the amended statute, the taxable event for tires that are purchased for the purpose of lease 
or rental occurs at the time the tires are purchased and the scrap tire tax is due at that time. The re- 
ceipts from the lease or rental of tires are not subject to the scrap tire tax but they are subject to the 
sales or use tax. The levy was expanded and, effective July 1. 1991, the one percent tax also applies 
to the retail sales of new tires for construction equipment, agricultural and industrial equipment, air- 
craft, and new tires that are sold to be placed on vehicles offered for sale, lease or rental. Sales of these 
tires are to be reported with sales of new motor vehicle tires on line 1 of the Scrap Tire Disposal Tax 
Report, Form E-500G. The scrap tire tax shall be computed on the selling price of the tire including 
the federal excise tax but excluding the sales tax. Tires that continue to be exempt from the one percent 
Scrap Tire Disposal Tax are bicycle tires and other tires for vehicles propelled by human power. 

(b) Purchases of new tires from outside North Carolina for storage, use or consumption in North 
Carolina or to be placed on a vehicle offered for sale, lease or rental are subject to the one percent rate 
on the cost price of each new tire. These tire purchases are to be reported on line 2 of the Scrap Tire 
Disposal Tax Report. The exemptions in G.S. 105-164.13 and the refunds authorized by G.S. 
105-164.14 for various groups and organizations do not apply to the taxes imposed by this Article. 

(c) The Scrap Tire Disposal Tax is not to be reported on a tire vendor's sales and use tax report but 
it is to be reported on the Scrap Tire Disposal Tax Report, Form F-500G. Taxpayers who are making 
sales or purchases of tires that are subject to the tax in accordance with the above information must 
register for this purpose. 

History Note: Statutory Authority G. S. 105-262; 105-264; 130A-309.55; 130A-309.56; 
Eff. October 1, 1991; 
Amended Eff. June I, 1992. 

SECTION .2400 - VETERINARIANS 



.2402 SALES BY VETERINARIANS 

(a) Sales of drugs and medicines on the written prescription of a veterinarian, whether from an in- 
ventory of medicines and drugs maintained by the veterinarian or whether by or through an inde- 
pendent pharmacy or drug store, are exempt from sales or use tax. The terms "medicines" and 
"drugs" shall mean medicines in the generally accepted sense of the term and also includes remedies 
and tonics for internal use, vaccines, vitamins, ointments, liniments, antiseptics and other medicinal 
substances having preventive and curative properties in the prevention, treatment or cure of disease in 
animals. 

(b) When a veterinarian maintains an inventory of medicines and drugs from which sales are made 
pursuant to a veterinarian's written prescription, to persons who actually receive the medicines or drugs 



727 7:7 NORTH CAROLINA REGISTER July 1,1992 



FINAL RULES 



for subsequent administration, such sales are exempt from sales or use tax provided adequate records 
are maintained which clearly segregate such prescription sales. In the absence of a written prescription, 
a copy of which is kept on file, veterinarians making such prescription sales must clearly show on the 
patients' medical records, cards or charts the diagnosis of the illness or ailment, the kind and amount 
of medicines or drugs prescribed, the sales price of such medicines or drugs and the frequency with 
which such medicines or drugs are to be administered to the patient. Records must be maintained that 
show charges to customers for professional services and such records must be kept in a manner so that 
such prescription sales of medicines and drugs can be related or traced to the patients' medical records, 
cards or charts. The foregoing does not apply to medicines or drugs that are administered by the 
veterinarian to the patient in connection with the treatment of patients since veterinarians are the users 
of any such medicines or drugs so administered. 

(c) Sales of medicines or drugs by a pharmacy on the written prescription of a veterinarian are exempt 
from sales or use tax. Sales of medicines and drugs by a pharmacy pursuant to a veterinarian's tele- 
phone (oral) prescription are exempt from sales or use tax provided the prescription is reduced to 
writing, signed by the pharmacist and filed in the same manner as an original written prescription. 
Medicines or drugs sold pursuant to the refilling of a veterinarian's prescription are likewise exempt 
from tax. Vendors making sales of medicines or drugs pursuant to a veterinarian's prescription or re- 
filling the same must keep sales records which will clearly segregate such prescription sales. All original 
prescriptions must be filed and kept available for inspection by the Secretary of Revenue or her au- 
thorized agent. 

(d) Veterinarians who maintain an inventory for the purpose of making sales of medicines, drugs, flea 
powder, soap, pet food, dog collars and similar items at retail must register with the Department and 
collect and remit the applicable tax on such sales. A veterinarian who uses tangible personal property 
in rendering professional services and also makes sales of the same type property may, in connection 
with such purchases, furnish Certificates of Resale, Form E-590, to his vendors. The veterinarian is 
then liable for remitting the applicable use tax on the property which is used and the applicable sales 
tax on sales of such property to users or consumers. 

History Note: Statutory Authority G.S. 105-164.4: 105-164.6: 105-262; 
Eff. February 1 , 1976; 
Amended Eff. June 1, 1992; August 1, 1986; May 11, 1979. 

SECTION .2600 - LIABILITY OF CONTRACTORS: USE TAX ON EQUIPMENT BROUGHT 

INTO STATE: BUILDING MATERIALS 



.2602 CONTRACTORS: SUBCONTRACTORS: RETAILER-CONTRACTORS 

(a) Contractors are deemed to be consumers of tangible personal property which they use in fulfilling 
contracts and, as such, are liable for payment of the four percent (three percent until July 16, 1991) state 
and any applicable local sales or use tax on such property. When a contractor or a subcontractor 
makes taxable purchases of tangible personal property from suppliers outside this State who charge the 
North Carolina four percent state and any applicable local sales or use tax thereon or from suppliers 
in this State, they should remit the tax on such purchases to their suppliers. When a contractor or 
subcontractor makes taxable purchases of tangible personal property for use in this State from a sup- 
plier outside this State who does not collect the North Carolina four percent state and any applicable 
local sales or use tax thereon, such contractor or subcontractor must remit the tax directly to the de- 
partment. Where the purchaser is a contractor, the contractor and owner shall be jointly and severally 
liable for said tax, but the liability of the owner shall be deemed satisfied if before final settlement be- 
tween them the contractor furnishes to the owner an affidavit certifying that said tax has been paid. 
Where the purchaser is a subcontractor, the contractor and subcontractor shall be jointly and severally 
liable for said tax, but the liability of the contractor shall be deemed satisfied if before final settlement 
between them the subcontractor furnishes the contractor an affidavit certifying that said tax has been 
paid. The liability of the subcontractor for such tax does not extend to the property owner. 

(b) The term retailer-contractor shall mean any person who engages in the business of selling building 
materials, supplies, equipment, and fixtures at retail and, in addition to such business, enters into con- 
tracts for constructing, building, erecting, altering or repairing buildings or other structures, and for the 
installation of equipment and fixtures to buildings and, in the performance of such contracts, consumes 
or uses such materials or merchandise. When a retailer-contractor as herein defined makes purchases 
of the above named tangible personal property, a part of which he will use in performing contracts and 



7:7 NORTH CAROLINA REGISTER July I 1992 72S 



FINAL RULES 



a part of which he will sell at retail, the retailer-contractor should furnish his supplier a properly exe- 
cuted certificate of resale. The supplier should keep the executed certificate for his records as his au- 
thority for not charging tax on the transaction. The retailer-contractor then becomes liable for 
remitting, directly to the department, tax on the sales price of any tangible personal property sold at 
retail, and tax on the cost price of any tangible personal property used in the performance of a contract. 

(c) Contractors are required to remit use tax at the applicable rate on the storage or use of motor 
vehicles, machines, machinery, tools and other equipment brought into this state for use in construction 
or repair work. The tax is to be applied and computed in the manner set forth in 17 NCAC 7B .2601. 

(d) Sales to contractors and subcontractors purchasing mill machinery or mill machinery" parts and 
accessories for use by them in the performance of contracts with manufacturing industries and plants 
and sales to subcontractors purchasing mill machinery' or mill machinery parts and accessories for use 
by them in the performance of contracts encompassed in such contracts with manufacturing industries 
and plants are subject to the one percent rate of tax, with a maximum tax of eighty dollars ($80.00) 
per article where applicable. Such mill machinery or mill machinery parts and accessories must be for 
use by a manufacturing industry or plant in the production process, as the term "production" is defined 
in 17 NCAC 7B .0202(a)(1), to qualify for the one percent rate of tax with a maximum tax of eighty 
dollars ($80.00) per article when purchased by such contractors or subcontractors. Contractors and 
subcontractors may obtain Contractor's and Subcontractor's Certificate, Form E-580, from the Sales 
and Use Tax Division, North Carolina Department of Revenue, to be executed by them and furnished 
to their vendors in connection with such purchases as the vendors' authority to apply the one percent 
rate of tax thereto. 

(e) Construction materials purchased or sold on and after July 16, 1991, (the effective date of the 
increase in the state tax rate to four percent) to fulfill a lump-sum or unit price contract entered into 
or awarded before July 16. 1991, or entered into or awarded pursuant to a bid made before July 16, 
1991 . will continue to be taxable at the three percent state rate of tax and the local tax of two percent. 
Form E-5S9, Affidavit to Fxempt Contractors From the Additional One Percent State Tax Effective 
July 16, 1991, must be executed by the contractor or subcontractor to obtain the three percent state 
rate. 

History Note: Statutory Authority G.S. 105-164.4: 105-164.6: 105-262: 105-264; 
Eff February I. 1976; 
Amended Eff. June I. 1992; October I. 1991: February 8, 1981; May II, 1979. 

.2611 BUILDING MATERIALS 

(a) All building materials, supplies, fixtures and equipment of even" kind and description which be- 
come a part of or are annexed to any building or other structure are subject to the four percent (three 
percent until July 16, 1991) state and any applicable local sales or use tax, except for the reduced rates 
and exemptions descnbed below. Vendors of such items are required to register and to collect and re- 
mit the tax on their sales to contractors and other users or consumers. 

(b) If the contractor purchases from a vendor outside the state any building materials, supplies, fix- 
tures or equipment for use in the construction, erection, alteration or repair of a building or other 
structure in this state and the vendor does not collect the tax thereon, such contractor must remit the 
use tax directly to the department. The Sales and Use Tax Law provides that in such cases the tax is 
a joint liability of the contractor and the owner. The liability of the owner will be satisfied if he obtains 
from the contractor before settlement an affidavit that the tax due has been paid. 

(c) Construction materials purchased or sold on and after July 16. 1991, (the effective date of the 
increase in the state tax rate to four percent) to fulfill a lump-sum or unit price contract entered into 
or awarded before July 16. 1991, or entered into or awarded pursuant to a bid made before July 16, 
1991, will continue to be taxable at the three percent state rate of tax and the local tax of two percent. 
Form E-589, Affidavit to Exempt Contractors From the Additional One Percent State Tax Effective 
July 16, 1991, must be executed by the contractor or subcontractor to obtain the three percent state 
rate. 

(d) Sales to contractors and subcontractors purchasing mill machinery or mill machinery parts and 
accessories for use by them in the performance of contracts with manufacturing industries and plants 
and sales to subcontractors purchasing mill machinery or mill machinery parts and accessories for use 
by them in the performance of contracts encompassed in such contracts with manufacturing industries 
and plants are subject to the one percent rate of tax. with a maximum tax of eighty dollars ($80.00) 
per article where applicable. Such mill machinery or mill machinery parts and accessories must be for 
use by a manufacturing industry or plant m the production process, as the term "production" is defined 



~29 7:7 NORTH CAROLINA REGISTER July 1, 1992 



FINAL RULES 



in 17 NCAC 7B .0202(a)(1), to qualify for the one percent rate of tax with a maximum tax of eighty 
dollars ($80.00) per article when purchased by such contractors or subcontractors. Contractors and 
subcontractors may obtain Contractor's and Subcontractor's Certificate, Form E-580, from the Sales 
and Use Tax Division, North Carolina Department of Revenue, to be executed by them and furnished 
to their vendors in connection with such purchases as the vendor's authority to apply the one percent 
rate of tax thereto. 

(e) Sales to commercial livestock and poultry farmers of materials to be used exclusively in the con- 
struction, repair or improvement of any enclosure or structure specifically designed, constructed, and 
used for commercial purposes for housing, raising, or feeding livestock and poultry or for housing 
equipment necessary for these activities, including work space used solely for these commercial activ- 
ities, are exempt from sales and use taxes. Likewise, sales of materials for the above described uses to 
contractors performing contracts with commercial livestock and poultry farmers and subcontractors 
performing contracts with general contractors who have contracts with commercial livestock and 
poultry farmers shall be exempt. The exemption from tax extends only to building materials, as such, 
which are used in the construction, repair or improvement of such enclosures or structures and which 
become a part of such enclosures or structures. The exemption does not extend to sales of equipment 
and machinery used to equip such enclosures or structures prior to September 1, 1987. Effective Sep- 
tember 1, 1987, the exemption was expanded to include sales of commercially manufactured swine, 
livestock, and poultry facilities to be used for commercial purposes for housing, raising, or feeding of 
swine, livestock, or poultry or for housing equipment necessary for these commercial activities; building 
materials, supplies, fixtures, and equipment to be used in the construction, repair, or improvement and 
that become a part of an enclosure or structure specifically designed, constructed and used for such 
above commercial purposes; and commercially manufactured swine, livestock, and poultry equipment, 
parts and accessories therefor placed or installed in or affixed to such facilities, enclosure, or structures. 

(f) For the purpose of this Rule, the words "swine, livestock and poultry" include swine, cattle, 
horses, mules, sheep, chickens, turkeys and other similar domestic animals and fowl usually held or 
produced on a farm for commercial purposes. The word "commercial" shall mean "held or produced 
for income or profit." It does not include one who merely produces swine, livestock or poultry for 
one's persona] use or consumption and not for sale. Commercial swine, livestock or poultry farmers, 
and contractors performing contracts with commercial swine, livestock or poultry farmers and sub- 
contractors performing contracts with general contractors who contract with commercial swine, live- 
stock or poultry farmers may obtain Commercial Swine, Livestock and Poultry Farmers' Certificate, 
Form E-599S, from the Sales and Use Tax Division, North Carolina Department of Revenue, or any 
of its field offices, to be executed by them and furnished to their vendors in connection with such pur- 
chases as the vendor's authority to exempt such purchases from sales and use taxes. 

History Note: Statutory Authority G.S. 10S-164A; 105-164.6; 105-262; 105-264; 
Eff. February 1, 1976; 
Amended Eff. June I, 1992; October 1, 1991; February I, I9SS; May II, 1979. 

SECTION .2700 - DENTISTS: DENTAL LABORATORIES AND DENTAL SUPPLY HOUSES 



.2702 SALES TO DENTAL LABORATORIES 

(a) Sales to dental laboratories of tangible personal property which becomes a component part of false 
teeth, dentures or artificial restoration of teeth being fabricated by such laboratories are not subject to 
sales or use tax. 

(b) Sales to dental laboratories of machinery and equipment, and accessories thereto for use directly 
in the fabricating of false teeth are subject to the one percent rate of sales or use tax with a maximum 
tax of eighty dollars ($80.00) per article. Sales to contractors and subcontractors purchasing such ma- 
chinery and equipment or parts and accessories thereto for use by them in the performance of contracts 
with dental laboratories and sales to subcontractors of such machinery and equipment or parts and 
accessories thereto for use by them in the performance of contracts encompassed in such contracts with 
dental laboratories are taxable at the one percent rate of sales or use tax, subject to a maximum tax of 
eighty dollars ($80.00) per article where applicable when the machinery and equipment or parts and 
accessories thereto are used by such dental laboratories directly in the fabricating of false teeth. Con- 
tractors and subcontractors may obtain Contractor's and Subcontractor's Certificate, Form E-580, from 
the Sales and Use Tax Division, North Carolina Department of Revenue, to be executed by them and 



7:7 NORTH CAROLINA REGISTER July I, 1992 730 



FINAL RULES 



furnished to their vendors in connection with such purchases as the vendor's authority to apply the one 
percent rate of tax. thereto. 

(c) Sales to dental laboratories of tangible personal property which does not become a component 
part of false teeth, or which is not used directly in the fabricating of the false teeth are subject to the four 
percent (three percent until July 16, 1991) state and any applicable local sales or use tax. 

History Sote: Statutory Authority G.S. 105-1644; 105-164.6; 105-164.13; 105-262; 105-264; 
Eff. February 1, 1976; 
Amended Eff. June I, 1992; October 1, 1991; January I, 1982; May 11, 1979. 

SECTION .2800 - FLORISTS: NURSERYMEN: GREENHOUSE OPERATORS AND 

FARMERS 



.2801 FLORISTS: NURSERYMEN: GREENHOUSE OPERATORS AND FARMERS 

(a) Retail sales of wreaths, bouquets and similar items are subject to the four percent (three percent 
until July 16, 1991) state and any applicable local sales or use tax. 

(b) Retail sales of flowers, potted plants, shrubbery and similar nursery stock and retail sales of fruits, 
vegetables and other farm products are subject to the four percent (three percent until July 16, 1991) 
state and any applicable local sales or use tax unless the product in question is a product of the farm 
and is sold in its original state by the producer of the product who is not primarily a retail merchant 
at the location where the product is sold. 

(c) For the purpose of the exemption afforded by G.S. 105-164.13(4.2), nurserymen and greenhouse 
operators are considered to be farmers. Nursery stock which is not sold during the season in which it 
was purchased by the nurserymen, greenhouse operators and other farmers but is retained until the next 
season and growth is added thereto by virtue of such retention is considered to be a product of the farm 
and is exempt from sales and use taxes when sold by such nurserymen, greenhouse operators or farmers 
who are not selling primarily as retail merchants. 

(d) Nurserymen, greenhouse operators and other types of farmers that make retail sales of farm pro- 
ducts that they have produced which are in their original state are not liable for collecting and remitting 
sales tax on these sales unless they are selling primanly in their capacity as retail merchants. Such 
vendors are selling primarily as producers when the total dollar sales volume of their produced farm 
products in the original state regularly exceeds fifty percent of the total dollar sales volume of their 
purchased products and their produced products. Such vendors are selling primarily in their capacity 
as retail merchants when their total dollar sales volume of purchased products regularly exceeds fifty 
percent of the total dollar sales volume of their purchased and produced products. Such classification 
shall remain in effect until either category - of sales on a regular basis has changed to another principal 
type. If such producer-vendors operate more than one location, the preceding is applicable to the total 
dollar sales volume of each location separately. The total dollar sales volume to be used in determining 
the classification of "producer" or "retail merchant" shall include all sales of tangible personal property 
without regard to any items or sales that might otherwise be exempt from tax by the Sales and Use 
Tax Statutes. 

(e) If such vendors are not classified primarily as retail merchants on the basis of the total dollar sales 
volume, sales of their produced products in the original state are exempt from tax; however, retail sales 
of any farm products or any other taxable merchandise acquired by purchase are subject to any appli- 
cable tax. If such vendors are classified primarily as retail merchants on the basis of the total dollar sales 
volume, they shall be liable for tax accordingly; i.e., all retail sales of both types of products shall be 
subject to the tax unless specific sales are statutorily exempt from tax. 

(f) When vendors who are not primarily retail merchants make sales of farm products produced by 
them and products acquired by purchase, separate records must be maintained of sales of products 
produced by them. Records of purchased products, as well as sales thereof, must be kept and main- 
tained in a manner that can be accurately and conveniently checked by the agents of the Secretary of 
Revenue; otherwise, all sales are subject to the tax. 

(g) Producers making taxable sales must register with the Department of Revenue for the purpose 
of collecting and remitting the tax due thereon. 

(h) When nurserymen, greenhouse operators, florists or other persons make taxable sales of shrub- 
bery, young trees or similar items, and as a part of the transaction transplant them to the land of the 
purchaser for a lump sum or a Hat rate, the entire amount of the transaction is subject to the four 
percent (three percent until July 16, 1991) state and any applicable local sales or use tax unless such 



731 7:7 NORTH CAROLINA REGISTER July 1, 1992 



FINAL RULES 



vendors segregate on the invoice that portion of the charge which is for the property sold and that 
portion of the charge which is for transplanting. 

(i) For the purpose of the exemption afforded by G.S. 105-164.13(4.2), nurserymen and greenhouse 
operators are considered to be farmers; therefore, the fact that they may be selling tangible personal 
property primarily as a retailer and not as a producer does not preclude certain of their purchases of 
tangible personal property for use from the one percent state rate of tax with a maximum tax of eighty 
dollars ($80.00) per article levied pursuant to G.S. 105-164.4(a)(ld)a. G.S. 105-1644(a)(ld)a. levies the 
above state rate of tax on sales to farmers of machines and machinery and parts therefor and accessories 
thereto for use by them in planting, cultivating, harvesting or curing farm crops. Regulation 17 NCAC 
7B .1101 provides additional information regarding the above levy. 

(j) Effective September 1, 1990, G.S. 105-164.13(6) was repealed removing the exemption from tax 
for retail sales of ice. G.S. 105-164. 13(4b) was rewritten to add an exemption for ice sold to be used 
to preserve agricultural, aquacultural and commercial fishery' products until the products are sold at 
retail. Sales of ice for resale continue to be exempt from tax. 

History Sole: Statutory Authority G.S. 105-164.4; 105-164.6; 105-164.13; 105-262; 
Eff. February 1, 1976; 
Amended Eff. June 1, 1992; October 1, 1991; March I. 1987; June I, 1985. 

SECTION .2900 - VENDING MACHINES 



.2901 SALES THROUGH VENDING MACHINES 

(a) Any person who makes sales of tangible personal property by means of vending machines is re- 
quired to register with the Department of Revenue and pay sales tax on the sales price of tangible 
personal property in excess of one cent per sale. One cent sales through vending machines are exempt 
from sales tax when made by the owner or lessee of the vending machines. Effective July 1. 1989, the 
sales price of tangible personal property sold through coin-operated vending machines, other than 
closed container soft drinks subject to the excise tax under Article 2B of the Revenue Act or tobacco 
products, is considered to be 50 percent of the total amount for which the property is sold through the 
vending machines. All bottled soft drinks containing 35 percent or more of natural fruit or vegetable 
juice and all bottled natural milk drinks containing 35 percent or more natural liquid milk are exempt 
from the excise tax imposed by the Soft Drink Tax Article, but the exemption does not apply to any 
vegetable or fruit dnnk to which has been added any coloring, artificial flavoring or preservative. Ef- 
fective October 1, 1991, all bottled soft drinks containing 100 percent natural fruit or vegetable juice 
without added ingredients of any kind other than vitamins and that are registered with the Soft Drink 
Excise Tax L'nit, are exempt from the excise tax imposed by the Soft Drink Tax Article. This ex- 
emption does not apply to any fruit or vegetable drink to which has been added any sugar, salt, 
preservatives, artificial flavoring, coloring, and carbonation. The receipts from sales of these items ex- 
empt from the soft drink tax will be subject to the tax on 50 percent of the total amount for which these 
items are sold through vendine machines. Records must be kept to support such exempt sales as re- 
quired by G.S. 105-164.22 and G.S. 105-164.24. 

(b) If a person operates a number of vending machines from which taxable sales are made at various 
locations in this state, one retailer's license may be held by such person at his principal place of business 
and the tax may be accounted for in one return reflecting the total gross receipts derived from sales 
through all vending machines operated in this state. 

History Note: Statutory Authority G.S. 105-164.4; 105-164.13; 105-262; 
Eff. February 1. 1976; 
Amended Eff. June 1. 1992: July I, 1989. 

SECTION .3100 RADIO AND TELEVISION STATIONS: MOTION PICTURE THEATRES 



.310-4 BROADCASTING ACCESSORIES 

Sales of slide or film projectors, screens, photographic supplies and equipment, including cameras, 
bulbs, film, blank videotape cassettes, chemicals, paper and other photographic developing equipment 
to television companies operating under the regulation and supervision of the Federal Communications 



7:7 NORTH CAROLINA REGISTER July I, 1992 712 



FINAL RULES 



Commission are subject to the one percent rate of tax with an eighty dollar ($80.00) maximum tax per 
article when such items are used in producing pictures and similar material used in the programming 
of the television station. This Rule has no application to sales of the above items to amateur or 
commercial photographers. 

History Note: Statutory Authority G.S. 105-164.4; 105-164.6; 105-262; 
Eff. February 1, 1976; 
Amended Eff. June 1, 1992. 

.3107 MOTION PICTURE PRODUCTION FIRMS 

(a) Sales to motion picture production firms of cameras, film and props or building materials used 
in the construction of sets which are used in the actual filming of movies for sale, lease or rental are 
subject to the one percent rate of tax with a maximum tax of eighty dollars ($80.00) per article. The 
sale of chemicals and equipment used to develop and edit film which is used to produce release prints 
qualifies for the one percent rate of tax. 

(b) Sales of machinery and equipment and other property to motion picture production firms for use 
in receiving tangible personal property and other activities such as raw materials storage, finished goods 
storage, distribution or administration is subject to the four percent (three percent until July 16, 1991) 
state and any applicable local sales or use tax. 

(ci The purchase of film by a movie production company which becomes a component part of release 
prints that are actually produced and sold, leased or rented to its customers are exempt from sales and 
use tax. Also, chemicals which are used to develop release prints that are for sale, lease or rental are 
exempt from tax. 

History Sole; Statutory Authority G.S. 105-164.4; 105-164.6; 105-262; 
Eff. June 1, 1992. 

SECTION .3200 - TELEPHONE AND TELEGRAPH COMPANIES 



.3204 CELLULAR TELEPHONE COMPANIES 

(aj Those firms known as cellular telephone companies, which are licensed by the Federal Commu- 
nications Commission and which provide their customers; on a commercial basis, access to local tele- 
communications company lines to make and receive telephonic quality communications by use of radio 
frequencies come within the purview of the statutes and this Rule as they relate to the one percent rate 
of tax on specified equipment. Sales to such firms of microwave transmitters and receivers, antennas, 
radio channel units, and central office telecommunications equipment, switchboard or private branch 
exchange equipment and prewritten computer programs used in providing telecommunications services 
to subscribers are subject to the one percent sales or use tax with a maximum tax of eighty dollars 
($80.00) per single article. Sales to such firms of towers to support antennas used to transmit and re- 
ceive signals of microwave radios used in providing such telephonic quality communications are subject 
to the one percent sales or use tax with a maximum tax of eighty dollars ($80.00). For the purpose 
of applying the maximum tax. a tower is considered to be a single article only when the complete tower 
is sold by the same vendor. Sales of antenna cable used in transmitting the radio signals from the 
microwave antenna to the microwave transmitter or receiver are subject to the one percent rate of tax 
with no maximum tax applicable thereto. 

(b) The gross receipts derived by a cellular telephone company from providing intrastate, local, toll 
or private telecommunications services, including basic service charges, system access charges and gen- 
eral usage charges, are subject to the three percent or six and one-half percent sales tax as provided in 
17 NCAC 7B .3201 (f). Sales or leases of radio telephone equipment to subscribers are subject to the 
four percent (three percent until July 6, 1991) state and any applicable local sales or use taxes. 

History Note: Statutory Authority G.S. 105-/64.4; 105-164.6; 105-262: 
Eff. June I, 1992. ' 

SECTION .3300 - ORTHOPEDIC APPLIANCES 



.3302 ITEMS NOT ORTHOPEDIC APPLIANCES 



733 7:7 NORTH CAROLINA REGISTER July /, 1992 



FINAL RULES 



Sales of therapeutic, prosthetic, or artificial devices, such as pulmonary respirators or medical beds, 
that are designed for individual personal use to correct or alleviate physical illness, disease or incapacity 
are exempt from sales and use tax when sold on the written prescription of a physician, dentist or other 
professional person licensed to prescribe; however, this exemption does not apply to the sale of a motor 
vehicle or to sales to persons not made pursuant to a written prescription of a physician, dentist of other 
professional person licensed to prescribe. Vendors making sales of therapeutic, prosthetic, or artificial 
devices pursuant to written prescriptions must keep sales records which clearly segregate such pre- 
scription sales. All original prescriptions must be filed and kept available for inspection by the Secretary 
of Revenue or her authorized agent. The items listed in this Rule are not orthopedic appliances within 
the meaning of G.S. 105-164.13(12) and are subject to the four percent (three percent until July 16, 
1991) state and any applicable local sales or use tax when sold to users or consumers in this state unless 
sold pursuant to a written prescription as provided herein: 

(1) athletic supporter; 

(2) ball o foot cushions; 

(3) bunion protector; 

(4) bunion reducer; 

(5) foot cushion; 

(6) heel cushions; 

(7) shoe insoles; 

(8) toe flex; 

(9) walk strate pads; 

(10) wigs; 

(11) heating pads; 

(12) heat lamps; 

(13) oxygen regulators (medical); 

(14) oxygen tents; 

(15) vaporizers. 

History Note: Statutory Authority G.S. 105-164.4; 105-164.6; 105-262; 
Eff. February 1, 1976; 
Amended Eff. June I. 1992; October 1. 1991; February I, 1986. 

SECTION .3400 - MEMORIAL STONE AND MONUMENT DEALERS AND 

MANUFACTURERS 



.3401 MEMORIAL STONE SALES 

(a) Except as provided in Paragraph (b) of this Rule, sales of memorial stones to users or consumers 
are subject to the four percent (three percent until July 16, 1991) state and any applicable local sales 
or use tax. Where the seller of a memorial stone or monument agrees to install such stone or monu- 
ment upon a foundation, a segregation must be made of materials used and installation charges in- 
volved, on an invoice given to the customer at the time of the sale. The seller may deduct the 
installation labor costs or services from the gross proceeds of the sale only when a segregation of the 
billing is made to the customer; otherwise, the total charge is taxable. 

(b) The first one thousand five hundred dollars ($1,500.00) of all funeral expenses, including gross 
receipts from tangible personal property furnished and services rendered by funeral directors, morticians 
and undertakers, or by monument and memorial stone dealers, shall be exempt from sales or use taxes. 
The term "funeral expenses", as used in this Rule, shall include charges by monument or memorial 
stone dealers for the sale and installation of memorial stones and monuments purchased by the estate 
of a deceased person and allowed as a funeral expense. It shall also include charges by monument and 
memorial stone dealers for the sale and installation of memorial stones and monuments purchased by 
a family member or other person responsible for the funeral expenses within one year after the death 
of the deceased person. The one thousand five hundred dollars ($1,500.00) exemption is applicable to 
the total charge for the sale and installation of a memorial stone or monument notwithstanding that 
the installation charge may be separately stated on the invoice at the time of the sale and in the vendor's 
records. Vendors making sales of memorial stones and monuments or services subject to the one 
thousand five hundred dollars ($1,500.00) exemption must keep sales invoices, books and other records 
showing the name of the purchaser, the total sales price of the tangible personal property, the date of 



7:7 NORTH CAROLINA REGISTER July I, 1992 734 



FINAL RULES 



the sale, the date of the death of the deceased person and the total sales price of all tangible personal 
property and services furnished. 

History Sole: Statutory Authority G.S. 105-164.3 105-164.4; 105-262; 
Eff. February 1, 1976; 
Amended Eff. June 1, 1992; October 1, 1991; July I, 1990. 

SEC HON .3500 - MACHINISTS: FOUNDRYMEN: AND PATTERN MAKERS 



.3501 MACHINISTS: FOUNDRYMEN: PATTERN MAKERS 

(a) Sales to users or consumers of dies, castings, patterns, tools, machinery and any other tangible 
personal property made by machinists, foundrymen or pattern makers, and parts and other tangible 
personal property fabricated and sold for use or consumption on or with such items of tangible personal 
property, are subject to the four percent (three percent until July 16, 1991) state and any applicable 
local sales or use tax unless such sales qualify for the one percent rate of tax under the provisions of 
Paragraph (b) of this Rule or are wholly exempt from the tax under the provisions of Paragraph (c) 
of this Rule. 

(bj The following sales of any such tangible personal property are subject to the one percent rate of 
tax with a maximum tax of eighty dollars ($80.00) per single article: 

(1) Sales of molds, patterns or dies by machinists, foundrymen, pattern makers or others and any 
other property classified as mill machinery, mill machinery parts and accessories to manufac- 
turing industries and plants. 

(2) Sales to contractors and subcontractors purchasing mill machinery or mill machinery parts and 
accessories for use by them in the performance of contracts with manufacturing industries and 
plants and sales to subcontractors purchasing miU machinery or mill machinery parts and ac- 
cessories for use by them in the performance of contracts encompassed in such contracts with 
manufacturing industries and plants. Such mill machinery or mill machinery parts and acces- 
sories must be for use by a manufacturing industry or plant in the production process, as the 
term "production" is defined in 17 NCAC 7B .0202(a)(1). to qualify for the one percent rate of 
tax with a maximum of eighty dollars ($80.00) per article when purchased by such contractors 
or subcontractors. Contractors and subcontractors may obtain Contractor's and Subcontrac- 
tor's Certificate. Form E-580, from the Sales and Use Tax Division, North Carolina Department 
of Revenue, to be executed by them and furnished to their vendors in connection with such 
purchases as the vendor's authority to apply the one percent rate of tax thereto. 

(3) Sales to farmers if such property is classified as farm machinery, or parts and accessories therefor, 
under the provisions of 17 NCAC 7B .1100. 

(4) Sales to commercial laundries, or pressing and dry cleaning establishments of machinery, or parts 
and accessories therefor, for use by the vendee in the direct performance of the cleaning and 
pressing service. 

(5) Sales of any such machinery, or parts and accessories therefor, to freezer locker plants for use in 
the direct operation of such plants. 

(c) The following sales of any such property to the following are exempt from tax: 

( 1 ) Commercial fishermen for use by them in the commercial taking or catching of shrimp, crab, 

oysters, clams, scallops and fish, both edible and nonedible. 
(2) For use or consumption by or on ocean-going vessels plying the high seas in interstate or foreign 

commerce in transporting freight or passengers for hire exclusively. 

(d) The tax due hereunder shall be computed at the applicable rate on the full selling price of such 
property, including charges for any services that go into the fabrication, manufacture or delivery thereof. 

History Note: Statutory Authority G.S. 105-164.4; 105-164.6; 105-164.13: 105-262; 105-264; 
Eff. February 1. 1Q~6; 
Amended Eff June 1. 1992: October 1. 1991; January I. 19S2: May 11, 1979. 

SECTION .3600 - FUNERAL EXPENSES 



.3601 FUNERAL EXPENSES 



'35 7:7 NORTH CAROLINA REGISTER July /, 1992 



FINAL RULES 



(a) Except as otherwise provided in Paragraph (b) of this Rule, all funeral expenses, including gross 
receipts from tangible personal property furnished or services rendered by funeral directors, morticians 
or undertakers arc subject to the four percent (three percent until July 16, 1991) state and any applicable 
local sales or use tax. Where coffins, caskets, vaults and memorial stones or monuments are provided 
by the same funeral home and a separate charge is paid for services, the provisions of this Rule shall 
apply to the total for both. For additional information regarding the sale and installation of memorial 
stones and monuments, see 17 NCAC 7B .3400. 

(b) The first one thousand five hundred dollars ($1,500) of the charge for such tangible personal 
property furnished or services rendered, or both, shall not be subject to the tax. In addition to the 
statutory exclusion, the following charges may also be excluded from taxable receipts provided such 
charges are separately and accurately identified in the funeral directors' records: those services which 
have been taxed pursuant to G.S. 105-164.4(4); those services performed by any beautician, 
cosmetologist, hairdresser or barber employed by or at the specific direction of the family or personal 
representative of the deceased; burial permit fees for interment in church cemeteries; stone deposits 
advanced to city and church cemeteries to guarantee the erection of a grave stone within a given time; 
transportation charges by common carriers for transporting the deceased from the place of death to the 
place of interment; honorariums; ambulance service in cases of final illness where the bill was not paid 
prior to death and is subsequently added to the funeral bill; cemetery lots; cash advances; grave opening 
fees; charges for telephone calls to friends and relatives of the deceased for the convenience of and at 
the request of the family of the deceased when billed separately to the family; charges for death certif- 
icates procured by or at the specific direction of the family or personal representative of a deceased 
person; and amounts paid directly to the funeral director by agencies of the federal government except 
death benefit payments by the Social Security Administration which require the authorization of the 
surviving 

(c) Sales to funeral directors, morticians and undertakers of graveside equipment, embalming fluid, 
cosmetics, disinfectants, chairs, flower racks, casket trucks and other supplies or equipment for use in 
conducting their businesses are subject to the four percent (three percent until July 16, 1991) state and 
any applicable local sales or use tax. 

History Note: Statutory Authority G.S. 105-164.4: 105-164.6; 105-164.13; 105-262; 
Eff. February I, 1976; 
Amended Eff. June I. 1992; October 1. 1991; February 1, 1987; February 1, 1986. 



SECTION .4400 - LEASE OR REVEAL 



.4403 MAINTENANCE OF LEASED PROPERTY 

(a) Sales of tangible personal property to registered lessors or retailers for the purpose of lease or 
rental exclusively are wholesale sales and not subject to tax provided properly executed certificates of 
resale are furnished to the vendors of such property. Sales of lubricants, repair parts and accessories 
to such lessors or retailers who use them to repair, recondition or maintain such lease or rental personal 
property are also wholesale sales when properly executed certificates of resale are provided to vendors 
of this type property. Lessors are responsible for payment of any applicable state and local tax on the 
cost price of such items if they are used for a purpose other than repairing or maintaining leased or 
rented property or if they are resold as such. Any tax due thereon is to be paid to the Secretary of 
Revenue on the lessors' or retailers' sales and use tax returns. 

(b) When the lessee purchases lubricants and repair parts to maintain tangible personal property being 
leased or rented, the lessee is liable for payment of the four percent (three percent until July 16, 1991) 
state and any applicable local sales or use tax on the cost price of such purchases to the vendors or to 
the Secretary of Revenue. If a separate maintenance agreement for a fixed fee where no separate charge 
is made for parts and labor is executed by the lessor and lessee whereby the lessor or the lessee agrees, 
for a consideration separate from the lease payments, to maintain property being leased or rented, 
purchases of repair parts and lubricants by either party are subject to the tax payable by the purchaser 
thereof as described in this Rule. 

History Note: Statutory Authority G.S. 105-164.4: 105-164.5; 105-164.6; 105-262; 
Eff. February I, 1976; 
Amended Eff June I. 1992; October 1, 1991; March I, 1984. 



7:7 NORTH CAROLINA REGISTER July 1, 1992 736 



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.4416 HIGHWAY USE TAX AND ALTERNATE GROSS RECEIPTS TAX 

(a) G.S. 105-187.5 provides that, effective October 1, 1989, lessors of motor vehicles may elect to pay 
the highway use tax to the Commission of Motor Vehicles when applying for a certificate of title for a 
motor vehicle purchased by the retailer for lease or rental or may elect to collect and remit the tax to 
the Secretary of Revenue on the lease or rental receipts derived therefrom. Any credit allowed by a 
vendor in the lease agreement for the equity in a traded-in vehicle is considered a part of the gross re- 
ceipts derived from the lease or rental of a motor vehicle and is subject to the highway use tax. Effective 
April 23. 1991. G.S. 105-187 was amended by adding Section 1 1 which allows lessors of motor vehicles 
the option of paying the highway use tax to the Commissioner of Motor Vehicles rather than the al- 
ternate gross receipts tax to the Secretary of Revenue on motor vehicles held in their inventory for lease 
prior to October 1, 19S9, and leased or rented on or after that date. To make the election allowed by 
this Section, a retailer must complete a form provided by the Division of Motor Vehicles. That Divi- 
sion will notify the Secretary of Revenue of a retailer who makes an election under this Section. If this 
election is made, no credit will be allowed for any tax paid on the purchase or rental of a motor vehicle 
under the Sales and Use Tax Law and for any tax paid on gross receipts under the Highway Use Tax 
Act. The taxes collected under this Section will be credited to the General Fund. 

(b) Effective October 1, 1989. the rate of highway use tax on motor vehicle lease or rental receipts 
will be eight percent for the first 90 continuous days of lease or rental of a vehicle to the same person, 
and the rate will reduce to three percent for the remainder of the continuous period dunng which the 
vehicle is leased or rented to that person. The maximum tax of one thousand dollars ($1,000.00) 
[effective July 1, 1993, the maximum tax will increase to one thousand five hundred dollars ($1,500.00)] 
applicable to the sale of a motor vehicle applies when the vehicle is leased or rented to the same person 
for more than 90 continuous days and the tax paid by a person from the fust day of such period applies 
toward the maximum tax. 

(c) Effective July 1, 1991, the Highway Use Tax Act was amended to define long-term and short-term 
lease or rental. Long-term lease or rental means a written agreement to lease or rent property for at 
least 365 continuous days to the same person. Short-term lease or rental is a lease for less than 365 
continuous days. The rate of tax on the gross receipts from the short-term lease or rental of a motor 
vehicle is eight percent and the tax rate on the gross receipts from the long-term lease or rental of a 
motor vehicle is three percent. The maximum tax of one thousand dollars ($1,000.00) [effective July 
1. 1993. the maximum tax will increase to one thousand five hundred dollars ($1,500.00)] applies to a 
continuous lease or rental of a motor vehicle to the same person. 

(d) A retailer who elects to pay tax to the Secretary of Revenue on the gross receipts from the lease 
or rental of a motor vehicle mujst make this election when applying for a certificate of title for the ve- 
hicle. To make the election, the retailer must complete a form provided by the Division of Motor 
Vehicles. MVR 60S (Rev. 10-90). Once made, an election is irrevocable. The eight percent rate of tax 
will be deposited in the General Fund. The three percent rate of tax will be deposited to the Highway 
Trust fund, the two rates of tax on motor vehicle lease receipts are reported on the same forms which 
will be provided to motor vehicle lessors by the Department of Revenue upon request. 

History Note: Statutory- Authority G.S. 105-187.3; 105-187.4; 105-187.5; 105-187.6; 105-187.8; 
105-187.9; 105-187.11; 105-262; 
Eff. October 1, 1991; 
Amended Eff. June 1. 1992. 

SECTION .4500 - LAUNDRIES: DRV CLEANING PLANTS: LAUNDERETTES: LINEN 
RENTALS: AND SOLICITORS FOR SUCH BLSINESSES 



.4501 RECEIPTS OF LAUNDRIES: ETC. 

(a) The gross receipts derived from the following are subject to the four percent (three percent until 
July 16. 1991) state and any applicable local sales or use tax: 

I 1 ) services rendered by pressing clubs, cleaning plants, hat blocking establishments, dry cleaning 
plants, laundries, including wet or damp wash laundries and businesses known as launderettes 
and launderalls, and all similar type businesses; 

(2) the rental of clean linen, towels, wearing apparel and similar items: 

(3) soliciting cleaning, pressing, hat blocking and laundry or linen rental business; 

(4) rug cleaning services performed by persons operating mg cleaning plants or performed by any 
of the businesses named in this Rule when the rug cleaning service is performed at the plant; 



737 7:7 NORTH CAROLINA REGISTER July I, 1992 



FINAL RULES 



receipts from rug cleaning services performed at the customer's location by any of the businesses 

included in this Rule are not subject to sales and use tax; 
(5) charges for laundering or dry cleaning linen, towels, wearing apparel and similar items owned 

by lessors which is held for lease or rental. 
Effective July 1, 1988, receipts derived from coin or token-operated washing machines, extractors and 
dryers are exempt from sales or use taxes. Retail sales of detergents, bleaches and other taxable items 
of tangible personal property through vending machines continue to be subject to the four percent 
(three percent until July 16, 1991) state and any applicable local sales or use tax. 

(b) Charges by the businesses named in (a) of this Rule for alterations or storage of garments are not 
a part of the gross receipts subject to tax when such charges are separately stated on their invoices and 
in their records. When such charges are not separately stated, the total charge is subject to the four 
percent (three percent until July 16, 1991) state and any applicable local sales or use tax. Sales of 
thread, buttons, zippers, pockets, and other similar tangible personal property to such businesses for 
use or consumption in making repairs and alterations to garments being laundered, cleaned or pressed 
are subject to the four percent (three percent until July 16, 1991) state and any applicable local sales 
or use tax. 

(c) When in addition to the services named in Paragraph (a) of this Rule, the herein-named businesses 
make retail sales of tangible personal property for which a separate charge is made, such sales are sub- 
ject to the four percent (three percent until July 16, 1991) state and any applicable local sales tax. Any 
charge for labor or services rendered in applying or installing such property are not subject to tax pro- 
vided such charges are segregated from the charge for the tangible personal property sold on the invoice 
given to the customer at the time of the sale and in the vendor's records; otherwise, the total amount 
is subject to tax. 

(d) Retailers of the services named in Paragraph (a) of this Rule are liable for the four percent (three 
percent until July 16, 1991) state and any applicable local sales or use tax on the gross receipts derived 
from their services; however, the tax does not apply to gross receipts from such services performed for 
resale by retailers that pay the tax on their receipts from the services. 

History Note: Statutory Authority G.S. 105-164.4; 105-262; 
Eff. February 1. 1976; 
Amended Eff June 1. 1992; October I, 1991; August 1, I9SS. 

SECTION .4600 - MOTOR VEHICLES AND BOATS 



.4601 SALES AND PURCHASES OE AUTOMOBILES AND OTHER MOTOR VEHICLES 

(a) The Sales and Use Tax Article was amended, effective October 1, 1989, to provide an exemption 
from sales and use taxes for sales of motor vehicles, the separate sales of a motor vehicle body and a 
motor vehicle chassis when the body is to be mounted on the chassis, and the sale of a motor vehicle 
body to be mounted by the manufacturer thereof on a motor vehicle chassis that temporarily enters the 
state for that purpose. Effective July 1, 1991, motor vehicle bodies mounted upon motor vehicles 
chassis that were titled and registered before the body was installed thereon are subject to the four 
percent (three percent until July 16, 1991) state tax and any applicable local sales or use tax. 
Prior to October 1, 1989, sales of motor vehicles, as defined in Paragraph (b) of this Rule, to users or 
consumers were subject to the two percent rate of tax with a maximum tax of three hundred dollars 
($300.00) applicable to the sale of any one motor vehicle. The tax was to be computed on the gross 
sales price of the motor vehicle less any allowance for a motor vehicle taken in trade as a credit or part 
payment on the sales price thereof. The gross sales price of the motor vehicle included any parts or 
accessories installed thereon at the time of the sale, labor for installing such parts or accessories, freight 
and any other charges for preparing the vehicle for sale. Parts or accessories sold separately from the 
sale of a motor vehicle are subject to the four percent (three percent until July 16, 1991) state tax and 
any applicable local sales or use tax; however, charges for labor to install such parts or accessories are 
not subject to tax when separately stated on the customer's invoice and in the vendor's records. 
Prior to October 1, 1989, separate sales of a new motor vehicle chassis and a new motor vehicle body 
to be installed thereon, whether sold by the same or different retailers, were subject to the maximum 
tax on sales of motor vehicles. Such sales are treated as a single sale. Retailers making sales of this 
nature must retain in their permanent records evidence of the amount of tax paid on the purchase of 
a new body or chassis and compute the amount of additional tax to be charged by determining the 
difference between the tax already paid and the amount of tax due on the combined selling price of such 



7:7 NORTH CAROLINA REGISTER July I, 1992 738 



FINAL RULES 



body and chassis subject to the maximum tax. When a new motor vehicle body was sold to be installed 
on a used motor vehicle chassis, the tax was to be computed on the sales price of the new motor vehicle 
body, subject to the maximum tax without regard to any tax previously paid on the used chassis. 
Effective July 1, 1991, G.S. 105-164.13(32) was rewritten to exempt the sale of a motor vehicle body 
to be mounted on a motor vehicle chassis when the certificate of title has not been issued for the chassis. 
Motor vehicle bodies mounted upon motor vehicle chassis that have been previously titled and regis- 
tered will be subject to the state rate of three percent or four percent plus the applicable local sales tax. 
Prior to October 1, 1989, the lease receipts derived from the lease or rental of a motor vehicle to a user 
or consumer in this state were subject to the two percent sales or use tax. The maximum tax of three 
hundred dollars ($300.00) was applicable to the receipts derived from the lease or rental of a motor 
vehicle for a stipulated period of time. Persons who leased or rented motor vehicles were to collect and 
remit the tax on the separate retail sale of a motor vehicle in addition to the tax imposed on the lease 
or rental of the motor vehicle. 

(b) Motor Vehicle defmed: For the purposes of the Sales and Use Tax Article, the term motor ve- 
hicle means a vehicle that is designed primarily for use upon the highways and is either self-propelled 
or propelled by a self-propelled vehicle, but does not include: 

(1) a moped as defined in G.S. 20-4.01(27)(dl); 

(2) special mobile equipment as defmed in G.S. 20-4.01(44): 

(3) a tow dollv that is exempt from motor vehicle title and reastration requirements under G.S. 
20-51(10) or (11): 

(4) a farm tractor or other implement of husbandry: 

(5) a manufactured home: or 

(6) road construction or road maintenance machinery or equipment. 

(c) Special Mobile Equipment Defined: Fvcry truck, truck-tractor, mdustrial truck, trailer, or semi- 
trailer on which have been permanently attached cranes, mills, well-boring apparatus, ditch digging 
apparatus, air compressors, electric welders or any similar type apparatus or which have been converted 
into living or office quarters, or other self-propelled vehicles which were onginally constructed in a 
similar manner which are operated on the highway only for the purpose of getting to and from a non- 
highway job and not for the transportation of persons or property or for hire. This shall also include 
trucks on which special equipment has been mounted and used by the American Fegion or Shrine 
Temples for parade purposes, trucks or vehicles privately owned on which fire-fighting equipment has 
been mounted and which are used only for fire-fighting purposes, and vehicles on which are perma- 
nently mounted feed mixers, grinders, and mills although there is also transported on the vehicle 
molasses or other similar type feed additives for use in connection with the feed-mixing, grinding or 
milling process. 

(d) Prior to October 1, 1989, the sales or use tax was to be computed on the gross sales pnee of a 
motor vehicle less any allowance for a motor vehicle taken in trade as a part of the consideration for 
the purchased vehicle. Prior to October 1, 1989, sales of all motor vehicles accepted in trade or re- 
possessed by vendors were subject to sales or use tax regardless of the fact that such motor vehicles 
may have been acquired by trade or repossessed by vendors. Prior to October 1. 1989, when property, 
other than motor vehicles, was taken in trade as a part of the consideration for a purchased vehicle, the 
sales or use tax was to be computed and paid on the full gross sales price of the motor vehicle without 
any deduction whatever on account of any trade-in credit or allowance. The sale of used property, 
other than a motor vehicle, by the dealer who accepted same in trade would then be exempt from tax. 
Effective October 1, 1989, motor vehicles are exempt from sales and use taxes and the sale of used 
property, other than a motor vehicle, taken in trade as a part of the consideration for the purchased 
vehicle is subject to sales tax. Repair parts withdrawn from inventory by a dealer and installed upon 
such property for sale are not subject to the tax. Certificates of resale may be executed by registered 
dealers when purchasing repair parts for resale or for use in reconditioning such property for sale. 

(e) Prior to October 1. 19S9, sales of motor vehicles to a registered merchant for resale were not 
subject to tax when supported by properly executed Resident and Nonresident Retail or Wholesale 
Merchant's Certificate of Resale. Form E-590. or other evidence in writing adequate to support the 
conclusion that he was registered with the Department of Revenue or in a taxing junsdiction outside 
this state for sales and use tax purposes and that the property was being purchased for the purpose of 
resale. Certificates of resale may also be executed by registered motor vehicle leasing firms when pur- 
chasing motor vehicles which they will lease or rent to their customers since such firms must remit tax 
on their lease or rental receipts. Prior to October 1, 1989, sales of motor vehicles to out-of-state mer- 
chants who accept delivery of the vehicles in this state for resale in their respective states are not subject 
to tax provided such merchants are registered for sales and use tax purposes in a taxing junsdiction 



739 7:7 NORTH CAROLINA REGISTER July 1, 1992 



FINAL RULES 



outside this state and furnish the North Carolina merchant a properly completed certificate of resale. 
Reference is made to 17 NCAC 7B .3201 for further information regarding sales to nonresident mer- 
chants. 
(f) Prior to October 1, 1989, sales of motor vehicles to nonresident purchasers which were delivered 
to them in North Carolina for immediate transportation to and use in another state in which such ve- 
hicles are required to be registered were not subject to sales tax. For the purpose of the exemption, the 
term "immediate transportation to . . . another state" means to either drive or transport the vehicle 
outside North Carolina en route to its state of registration within seventy-two hours after the purchase 
thereof; however, purchases of motor vehicles by military personnel for use in North Carolina are tax- 
able notwithstanding that such persons might have registered the motor vehicles in their home states. 
The seller must have obtained from the purchaser and furnished to the Secretary of Revenue an Affi- 
davit for Exemption of Motor Vehicle Sold for Immediate Transportation and Use Outside of North 
Carolina, Form E-599B, stating the name and address of the purchaser, the state in which the vehicle 
will be registered and operated, the make, model, and serial number of the vehicle, and such other in- 
formation as the Secretary may require. The exemption was fully allowed when the affidavit was filed 
with the seller's sales and use tax report for the month during which the sale was made and such report 
was timely filed. When an affidavit concerning a sale of a motor vehicle to a nonresident purchaser 
was not filed with the retailer's sales and use tax report for the month in which the sale of the vehicle 
was made and the failure to file the affidavit is discovered on or after August 12, 1989, it shall be ac- 
cepted if it is filed within 30 days after such discovery, but no refund shall be made of sales and use taxes 
already paid. An affidavit filed within this 30-day period is subject to a penalty of 25 percent of the tax 
applicable to the sales price of the motor vehicle. If the affidavit is submitted to the Secretary of Re- 
venue after the end of this 30-day period, no exemption shall be allowed. The provisions of this Par- 
agraph are not applicable to sales of motor vehicles which are subject to the highway use tax after 
September 30, 1989. 

History Sole: Statutory Authority G.S. 105-164.4; 105-164.5; 105-164.6; 105-/64.13; 105-262; 
Eff February I. 1976; 
Amended Eff. October I, 1991; July I, 1990; February I, I9SS; March 1, 1987. 

.4602 AIRCRAFT: BOATS: RAILWAY CARS: LOCOMOTIVES: MANUFACTURED HOMES 

(a) Effective August 1, 1989, the maximum sales tax on retail sales of aircraft, boats, railway cars or 
locomotives increased from three hundred dollars ($300.00) to fifteen hundred dollars ($1,500.00). The 
rate of tax applicable to such sales of aircraft, boats, railway cars or locomotives three percent (two 
percent until July 16, 1991) state tax and is payable to the Secretary of Revenue on vendors' sales and 
use tax reports. 

Effective October 1, 1989, the term "motor vehicle", as set forth under G.S. 105-164.3(8b), excludes a 
manufactured home. G.S. 105- 164.3(Sa) defines a "manufactured home" as a structure that is designed 
to be used as a dwelling and: 

(1) Is built on a permanent chassis; 

(2) Is transportable in one or more sections; 

(3) When transported, is at least eight feet wide or 40 feet long; and 

(4) When erected on a site, has at least 320 square feet. 

Retail sales of manufactured homes will continue to be subject to the two percent rate of sales tax with 
a maximum tax of three hundred dollars ($300.00) per article including all accessories attached to the 
manufactured home when it is delivered to the purchaser. Each section of a manufactured home that 
is transported to the site where it is to be erected is a separate article. Dealers must continue to remit 
sales tax to the Secretary of Revenue on their retail sales of manufactured homes. 

(b) A retail sale of a boat with a boat trailer is considered to be the sale of two separate articles. The 
retail sale of the boat trailer, a motor vehicle within the meaning of the statute, is subject to the three 
percent highway use tax with a maximum tax of one thousand dollars ($1,000.00) applicable to the 
trailer. The retail sale of the boat is subject to the three percent (two percent until July 16, 1991) rate 
of tax with a maximum tax of fifteen hundred dollars ($1,500.00) applicable to the sale of any boat 
except for those sales exempt from tax under the provisions of G.S. 105-164.13(9). The tax shall be 
computed on the gross sales price of the boat, including charges for the boat motor, fenders, boat and 
motor controls, compasses, windshields, horns, lights, or any other parts or accessories, all of which 
must be attached thereto at the time of delivery to the purchaser, labor for installing such parts and 
accessories, freight or any other charge for preparing the boat for sale. Life jackets, life rings, cushions, 
flares, fire extinguishers and rope are considered to be safety equipment rather than accessories to the 



7:7 NORTH CAROLINA REGISTER July I, 1992 740 



FINAL RULES 



boat and sales of such items at retail are subject to the four percent (three percent until July 16, 1991) 
state tax and any applicable local sales or use tax notwithstanding they are sold with the boat. Parts 
and accessories, including boat motors, fenders, boat and motor controls, lights, windshields, homs and 
other above-named items sold separately from the sale of a boat are also subject to the four percent 
(three percent until July 16, 1991) state tax and any applicable local sales or use tax. 

Histon Note: Statutory: Authority G.S. 105-164.4; 105-164.6; 105-262; 
Eff. February I. 19~6; 
Amended Eff. October I, 1991; July I, 1990; January 3, 1984; May II. 1979. 

.4603 MOTOR VEHICLE SERVICE BUSINESSES 

(a) Persons engaged in the business of repairing automobiles and other motor vehicles are liable for 
collecting and remitting the four percent (three percent until July 16, 1991) state and any applicable 
local sales or use tax on the sales price of any parts, accessories or other tangible personal property 
which they furnish in connection with repairing their customers' vehicles. Charges for labor to install 
the parts, accessories and similar property are not subject to tax if such charges are separately stated 
on the customers' invoices and in the vendor's records; otherwise, the total charges are subject to the 
tax. 

(b) Sales of repair parts, accessories and other tangible personal property to automotive repair shops 
for resale in connection with repairing their customers' vehicles are not subject to tax when supported 
by certificates of resale, Form E-590. 

(c) Sales of tools, equipment and supplies to automotive repair shops for use in conducting their 
business are subject to the four percent (three percent until July 16. 1991) state and any applicable local 
sales or use tax and vendors making such sales are required to collect and remit same. Certificates of 
resale are not applicable to sales of this nature. If. in addition to repairing motor vehicles, a repair shop 
actually makes sales of tools, equipment, supplies, and similar items to its customers, such repair shop 
may purchase such items under a certificate of resale. Vendors selling tools, equipment, supplies and 
similar items to a repair shop, or similar business which does not ordinarily and customarily engage in 
reselling such articles at retail should require from such vendee a certificate of resale with each order for 
such articles. Such vendee is then liable for collecting and remitting the four percent (three percent until 
July 16, 1991) state and any applicable local sales or use tax on its sales of tools, equipment, supplies 
and similar items. 

(d) The total charge for all tangible personal property, including windshields, window glass, seat 
covers, floor mats, head liners, runners, channels, pig rings, felt, tacks, screws, thread, tape, windlass, 
welt cord, and similar items installed in or upon motor vehicles or other articles by persons selling and 
installing such property are subject to the four percent (three percent until July 16, 1991) state and any 
applicable local sales or use tax. The charge for labor performed or other services rendered in installing 
the same are also subject to the four percent (three percent until July 16, 1991 ) state and any applicable 
local sales or use tax unless such charges are separately stated on the customer's invoice and in the 
vendor's records. All tax due hereunder must be collected and remitted to the department by the per- 
son selling and performing such installation service. Sales of tangible personal property for resale in 
connection with glass repair and reupholstery jobs are not subject to tax when supported by properly 
executed certificates of resale; however, any tools, supplies or other property sold for use in performing 
such work are subject to the four percent (three percent until July 16, 1991) state and any applicable 
local sales or use tax. 

(e) Persons engaged in the business of painting or refmishing motor vehicles are the users or con- 
sumers of tangible personal property which they purchase for use in the performance of such services. 
Sales to such businesses of paint, primer, sandpaper and belts, masking tape, putty and other finishing 
or refmishing materials, including those named in Paragraph (f) of this Rule, tools, supplies and any 
other tangible personal property for use in body repair, painting or refmishing work are subject to the 
four percent (three percent until July 16, 1991) state and any applicable local sales or use tax. If, in 
addition to such body repair, painting or refmishing work, said businesses purchase tangible personal 
property such as automobile fenders, doors, windshields or other parts or accessories, and sell the same 
to their customers, such businesses are liable for collecting and remitting the tax on such sales irre- 
spective of whether the sales are made in connection with repair or refmishing jobs. 

(f) Sales of soap. wax. polish, glaze, undercoating, scotchguard, finish protectants and other related 
materials to motor vehicle dealers and other businesses that use such materials to wash. wax. and or 
apply a protective coating to automobiles are subject to the four percent (three percent until July 16, 
1991 ) state and any applicable local sales or use tax thereon. 



"41 7:7 NORTH CAROLINA REGISTER July I, 1992 



FINAL RULES 



History Note: Statutory Authority G.S. 105-1643; 105-164.4; 105-164.5; 105-164.6; 105-262; 
Eff. February I, 1976; 
Amended Eff. June 1, 1992; October I, 1991. 

.4604 SPECIAL EQUIPMENT-ACCESSORIES: MOTOR VEHICLES 

(a) Effective October 1, 1989, retail sales of motor vehicles, including all accessories attached to the 
vehicles when delivered to the purchaser, are exempt from sales tax. Prior to October 1, 1989, retail 
sales of motor vehicles with special accessories such as pulling devices, hole digging devices, aerial 
working devices or other special accessories which are attached to and a part of such motor vehicles 
when they are delivered to purchasers are subject to the two percent rate of tax with a maximum tax 
of three hundred dollars ($300.00) applicable to each such vehicle. The term "motor vehicle", as used 
in this Rule, means a vehicle that is designed primarily for use upon the highways and is either self- 
propelled or propelled by a self-propelled vehicle, but does not include: 

(1) a moped as defined in G.S. 20-4.01(27)(dl); 

(2) special mobile equipment as defined in G.S. 20-4.01(44); 

(3) a tow dollv that is exempt from motor vehicle title and registration requirements under G.S. 
20-51(10) or (11); 

(4) a farm tractor or other implement of husbandry; 

(5) a manufactured home; or 

(6) road construction or road maintenance machinery or equipment. 

(b) Persons selling such special equipment or accessories at retail which they mount upon a motor 
vehicle chassis or body belonging to others must collect and remit the four percent (three percent until 
July 16, 1991) state and any applicable local sales or use tax thereon. Any charges for labor or services 
rendered in installing or applying such items are not subject to tax provided such charges are segregated 
from the charge for the tangible personal property sold on the invoice given to the customer at the time 
of sale and in the vendor's records; otherwise the total amount is subject to tax. 

History S'ote: Statutory Authority G.S. 105-164.4; 105- 164.6: 105-262; 
Eff. February I. 1976: 
Amended Eff June I, 1992: October 1, 1991; July I, 1990: December I. I98S. 

.4618 MOTOR VEHICLE SUPPLIES 

History Note: Statutory Authority G.S. 105-/64.4; 105-/64.6; 105-262; 
Eff. February I, 1976; 
Amended Eff. October 1, 1991; 
Repealed Eff June 1, 1992. 

.4619 HIGHWAY USE TAX 

(a) Effective October 1, 1989, retail sales of motor vehicles are exempt from sales tax and subject to 
the three percent highway use tax under Article 5A of Chapter 105 of the General Statutes with a 
minimum tax of forty dollars ($40.00) applicable thereto, with certain exceptions, and a maximum tax 
of one thousand dollars ($1,000.00) on any one motor vehicle increasing to one thousand five hundred 
dollars ($1,500.00) July 1, 1993. The highway use tax must be paid to the Commissioner of Motor 
Vehicles by the dealer, the purchaser, or other applicant for a certificate of title at the time of making 
application. The basis for the tax on sales of motor vehicles by retailers will be the sales price of the 
motor vehicles including all accessories attached thereto at the time of deliver)' of the vehicles to the 
purchasers less the amount of any allowance given by the retailer for motor vehicles taken in trade. 
The basis for the tax on sales of motor vehicles for which a certificate of title is issued because of a sale 
of the vehicle by the seller who is not a retailer is the market value of the vehicle, less the amount of 
any allowance given by the seller for a motor vehicle taken in trade for the purchased motor vehicle. 
The retail value of a motor vehicle for which a certificate of title is issued because of a reason other than 
the sale of the motor vehicle is the market value of the vehicle. The market value of the vehicle is 
presumed to be the value of the vehicle set forth in a schedule of values adopted by the Commissioner 
of Motor Vehicles not to exceed the wholesale value. 

(b) Effective October 1, 1989, the statute provides that the highway use tax will not be applicable to 
motor vehicles delivered to purchasers on or after October 1, 1989, pursuant to written contracts of sale 
entered into before that date, but they will be subject to the sales tax at the rate of two percent with 



7:7 NORTH CAROLINA REGISTER July 1, 1992 742 



FINAL RULES 



the three hundred dollars ($300.00) maximum tax per vehicle. The highway use tax will not be appli- 
cable to the transfer of a motor vehicle to: 

(1) the insurer under G.S. 20-109.01 of the Motor Vehicle Laws because the vehicle is a salvage 
vehicle; 

(2) to either a manufacturer, as defined in G.S. 20-285, for resale; or 

(3) to a motor vehicle retailer for the purpose of resale. 

(c) Effective October 1, 1989, only the minimum tax of forty dollars ($40.00) will be imposed when 
a certificate of title is issued as a result of the transfer of a motor vehicle: 

( 1 ) by a gift between a husband and wife or a parent and child: 

(2) by will or intestacy; 

(3) by a distribution of marital property as a result of a divorce; 

(4) to a secured party who has filed a security interest in the motor vehicle with the Department of 
the Secretary of State; 

(5) to a partnership or corporation as an incident to the formation of the partnership or corporation 
and no gain or loss arises on the transfer under section 351 or section 721 of the Internal Re- 
venue Code, or to a corporation by merger or consolidation in accordance with G.S. 55-110; 
or 

(6) to the same owner to reflect a change in the owner's name. 

(d) Effective August 1, 1991, the highway use tax will not be applicable when a certificate of title is 
issued as the result of a transfer of a motor vehicle: 

(1) to the insurer of the motor vehicle under G.S. 20-109.1 because the vehicle is a salvage vehicle; 

(2) to either a manufacturer, as defined in G.S. 20-286, or a motor vehicle retailer for the purpose 
of resale; 

(3) to the same owner to reflect a change or correction m the owner's name; 

(4) by will or intestacy; 

(5) by a conveyance between a husband and wife or a parent and child; 

(6) by a distribution of marital property as a result of a divorce. 

(e) Effective August 1, 1991, only the minimum tax of forty dollars ($40.00) will be imposed when 
a certificate of title is issued as a result of the transfer of a motor vehicle: 

( 1 1 to a secured party who has a perfected security interest in the motor vehicle; 
(2) to a partnership or corporation as an incident to the formation of the partnership or corporation 
and no gain or loss arises on the transfer under Section 351 or Section 721 of the Internal Re- 
venue Code, or to a corporation by merger or consolidation in accordance with G.S. 55-1 1-06. 
A maximum tax of one hundred fifty dollars ($150.00) (one hundred dollars ($100.00) effective October 
1. 19S9 until August 1, 1991] applies when a certificate of title is issued for a motor vehicle that, at the 
time of applying for a certificate of title, is and has been titled in another state for at least 90 days. 
Credit is allowed for tax paid to another state; however, the tax credit does not reduce the tax due below 
the forts dollars ($40.00) minimum. 

( f) When a purchaser of a motor vehicle returns the vehicle to the seller within 90 days after the 
purchase of the vehicle and receives a motor vehicle replacement or a refund of the purchase price paid 
to the seller, the purchaser may obtain a refund of the tax paid on the certificate of title issued for the 
returned vehicle less the minimum tax of forty dollars ($40.00) by submitting an application for refund 
to the Commissioner of Motor Vehicles. 

(g) G.S. 105-187.5 provides that, effective October 1, 1989. lessors of motor vehicles may elect to pay 
the highway use tax to the Commissioner of Motor Vehicles when applying for a certificate of title for 
a motor vehicle purchased by the retailer for lease or rental or may elect to collect and remit the tax to 
the Secretary of Revenue on the lease or rental receipts derived therefrom. Effective April 23, 1991, 
G.S. 105-187 was amended by adding Section 11 which allows lessors of motor vehicles the option of 
paying the highway use tax to the Commissioner of Motor Vehicles rather than the alternate gross re- 
ceipts tax to the Secretary' of Revenue on motor vehicles held in their inventory for lease prior to Oc- 
tober 1. 1989. and leased or rented on or after that date. To make the election allowed by this Section, 
a retailer must complete a form provided by the Division of Motor Vehicles. That Division will notify 
the Secretary of Revenue of a retailer who makes an election under this Section. If this election is 
made, no credit will be allowed for any tax paid on the purchase or rental of a motor vehicle under the 
Sales and Use Tax Law and for any tax paid on gross receipts under the Highway L'se Tax Act. The 
taxes collected under this Section will be credited to the General Fund. 

Effective October 1, 1989, the rate of highway use tax on motor vehicle lease or rental receipts will be 
eight percent for the first 90 continuous days of lease or rental of a vehicle to the same person, and the 
rate will reduce to three percent for the remainder of the continuous period during which the vehicle 



743 7:7 NORTH CAROLINA REGISTER July I, 1992 



FINAL RULES 



is leased or rented to that person. The maximum tax applicable to the sale of a motor vehicle applies 
when the vehicle is leased or rented to the same person for more than 90 continuous days and the tax 
paid by a person from the first day of such period applies toward the maximum tax. Effective July 1, 

1991, the Highway Use Tax Act was amended to define long-term and short-term lease or rental. 
Long-term lease or rental means a written agreement to lease or rent property for at least 365 contin- 
uous days to the same person. Short-term lease or rental is a lease for less than 365 continuous days. 
The rate of tax on the gross receipts from the short-term lease or rental of a motor vehicle is eight 
percent and the tax rate on the gross receipts from the long-term lease or rental of a motor vehicle is 
three percent. The maximum tax applies to a continuous lease or rental of a motor vehicle to the same 
person. A retailer who elects to pay tax to the Secretary- of Revenue on the gross receipts from the lease 
or rental of a motor vehicle must make this election when applying for a certificate of title for the ve- 
hicle. To make the election, the retailer must complete a form provided by the Division of Motor 
Vehicles. Once made, an election is irrevocable. The eight percent rate of tax will be deposited in the 
General Fund. The three percent rate of tax will be deposited to the Highway Trust Fund. Separate 
forms for reporting the separate rates of tax on motor vehicle lease receipts will be provide by the De- 
partment of Revenue to motor vehicle lessors upon receipt of their request for such forms. 

(h) G.S. 105-187. 5(d) was rewntten to authorize the Secretary of Revenue to administer the tax im- 
posed on the gross receipts from the lease or rental of motor vehicles in the same manner as the tax 
levied under G.S. 105- 164.4(a)(2). The administrative provisions and powers of the Secretary that ap- 
ply to the tax levied under G.S. 105- 164.4(a)(2) apply to the tax imposed on the gross receipts from the 
lease or rental of motor vehicles. The Division of Motor Vehicles may request the Secretary to audit 
a retailer who elects to pay tax on gross receipts under this Section and the Division of Motor Vehicles 
shall reimburse the Secretary' for the cost of the audit, as determined by the Secretary. In conducting 
an audit of a retailer under this Section, the Secretary may audit any sales of motor vehicles made by 
the retailer. 

History Note: Statutory Authority G.S. 105-187.3; 105-187.4; 105-187.5; 105-187.6; 105-187.8; 
105-187.9; 105-262; 
Eff. October I, 1990; 
Amended Eff. June I, 1992; October 1, 1991. 

SECTION .4700 PRINTERS AND NEWSPAPER OR MAGAZINE PUBLISHERS 



.4701 COMMERCIAL PRINTERS AND PUBLISHERS 

(a) All retail sales of tangible personal property by commercial printers or publishers are subject to 
the four percent (three percent until July 16, 1991) state and any applicable local sales or use tax unless 
such sales are subject to a lesser rate of tax under the provisions of G.S. 105-164.4(1) or are exempt 
by statute. The following sales are exempt from sales or use tax: 

(1) charges for advertising space in newspapers, magazines and other publications; 

(2) sales of newspapers by newspaper street vendors and by newspaper carriers making door to door 
deliveries and sales of magazines by magazines vendors making door to door sales; 

(3) charges made by printers for imprinting or binding books or forms or other similar items which 
are owned by their customers; 

(4) sales to manufacturers, producers, wholesalers and retailers of wrapping paper, labels, bags, car- 
tons and other similar items when such items are used for packaging, shipping, or delivering 
tangible personal property sold at wholesale or retail, and when such items constitute a part of 
the sale of such tangible personal property and are delivered with it to the customer; 

(5) sales of advertising supplements and any other printed matter ultimately to be distributed with 
or as a part of a newspaper; 

(6) sales of paper, ink and other tangible personal property to commercial printers and commercial 
publishers for use as ingredient or component parts of free circulation publications, and sales 
by printers of free circulation publications to the publishers of these publications. As used in 
this Rule, the term "free circulation publications" means shoppers' guides that: 

(A) are published on a periodic basis at recurring intervals; 

(B) are mailed or distnbuted house-to-house, by street distributors, in racks, or in any other 
manner at other locations without charge to the recipient; 



7:7 NORTH CAROLINA REGISTER July I, 1992 744 



FINAL RULES 



(C) contain advertising of a general nature for the sale of goods and services by a variety of busi- 
nesses, trades or industries and are not limited to advertising the sale of goods or services by a 
particular business, trade or industry; and 

(D) make space available to all advertisers for the purpose of inducing readers to purchase the 
goods and services of the advertisers. 

The term does not include house organs or trade, professional, or similar types of publications. 
The ratio of news to advertising in a publication is not a factor in determining whether the 
publication is a free circulation publication. 
(7) printed material which is sold by a printer to a purchaser within or without this state is exempt 
from sales or use tax when such printed material is delivered in this state by the printer to a 
common carrier or to the United States Postal Service for delivery to the purchaser or the pur- 
chaser's designees outside this state, if the purchaser does not thereafter use the printed material 
in this state. Printed material which is sold by a printer to a purchaser within or without this 
state is exempt from sales or use tax when the printed material is delivered by the printer directly 
to a mailing house or to a common carrier or to the United States Postal Service for delivery to 
a mading house in this state which will preaddress and presort the material and deliver it to a 
common carrier or to the United States Postal Service for delivery to recipients outside this state 
designated by the purchaser. 

(A) Sales of printed material by a printer located within or without this state which is delivered 
directly to the purchaser in this state for the original purpose of preparing and delivering the 
printed material to the United States Postal Service or a common earner for delivery to pro- 
spective customers or other recipients outside this state are exempt from sales and use tax pro- 
vide such purpose is consummated. A purchaser of such printed material for preparation and 
delivery to prospective customers and other recipients outside this state must furnish the vendor 
a written statement certifying that the printed material is being purchased for use in a mailing 
program which is in place at the time of purchase; otherwise, the vendor must collect and remit 
the tax on such sales. Sales of printed materials to a user or consumer in this state to be placed 
in the purchaser's inventory for use as needed are subject to sales or use taxes notwithstanding 
that all or a portion of the printed material may be delivered to the United States Postal Service 
or a common carrier for delivery to prospective customers or other recipients outside this state. 

(B) A printer who sells printed material which is delivered to an in-state or out-of-state purchaser 
at a point within this state or which is delivered to a common carrier or the United States Postal 
Service for delivery to the purchaser at a point within this state who prepares the matenal to be 
maded to prospective customers or other recipients without charge and transports the matenal 
outside this state to be delivered to the United States Postal Service or a common carrier or to 
a mailing house outside this state for delivery to designated recipients is liable for sales or use tax 
except as provided herein. 

(C) The sale of printed materials by vendors other than printers and other types of tangible per- 
sonal property which is provided without charge to recipients, whether it be advertising materials 
or gifts or donations, are subject to sales or use tax even though the items in question may be 
mailed to designated recipients outside this state. For example, a purchaser in this state buys 
tangible personal property other than printed material from a printer which is given to a donee 
within or without this state and directs that the item can be shipped or mailed to the donee. 
This transaction is subject to sales or use tax. 

(b) Retail sales of advertising circulars, catalogues, booklets, pamphlets, forms, tickets, letterheads, 
envelopes and simdar items and retail sales of books, magazines, periodicals, newspapers and other 
publications are subject to the four percent (three percent until July 16, 1991) state and any applicable 
local sales or use tax unless such sales are exempt from tax by statute. When publications, other than 
magazines, are sold by subscription, the tax accrues at the time the subscription is accepted. 

(c) Sales of paper, ink, and other tangible personal property to commercial printers or publishers for 
use as an ingredient or component part of the printed matter which they produce for sale are exempt 
from the tax. 

(d) Sales to commercial printers and publishers of machinery and equipment and parts therefor and 
accessories thereto for use directly in the production of newspapers, magazines and other printed matter 
for sale are subject to the one percent rate of tax with a maximum tax of eighty dollars ($80.00) per 
article. Included herein are custom made plates and dies when title thereto does not pass to the 
pnnters' customers. Sales to commercial printers and publishers of tangible personal property such as 
wood and metal which is used to fabricate plates and dies for use in the production of printed matter 
for sale are likewise subject to the one percent rate of tax when title to the plates and dies does not pass 



745 7:7 NORTH CAROLINA REGISTER July I, 1992 



FINAL RULES 



to the printers' customers. Sales to commercial printers and publishers of machinery, equipment, film, 
and similar items of tangible personal property for use or consumption directly in the production of 
such plates and dies are also subject to the one percent rate of tax. It is a printing trade practice that 
title to lithographic and gravure plates and dies is retained by the printer or publisher. Unless it is 
otherwise agreed in writing, the secretary will consider such items to be purchased by the printer or 
publisher for use or consumption and taxable at the one percent rate of tax on the cost price thereof. 

(e) Sales to commercial printers of custom made plates and dies for resale are exempt from sales or 
use tax when supported by certificates of resale. Form E-590. Sales to commercial printers of tangible 
personal property such as wood and metal which becomes a component part of printing plates 
produced by such printers for sale to customers are likewise exempt from sales or use tax when sup- 
ported by certificates of resale, form E-590. However, sales to commercial printers of machinery', 
equipment, film, and similar items of tangible personal property which do not enter into or become a 
component part of such plates and dies but are used or consumed by the printer in the direct pro- 
duction of such plates and dies are subject to the one percent rate of tax. When, at the request of the 
customer, commercial printers purchase custom made printing plates and dies for use in the direct 
production of the printed matter or when they purchase wood and metal which becomes a component 
part of printing plates and dies fabricated by the printer for use in the direct production of printed 
matter and title to the plates and dies passes to the printers' customers, such items can be properly 
purchased for resale. The printer is. of course, liable for collecting and remitting the four percent (three 
percent until July 16, 1991) state and any applicable local sales or use tax on the total retail sales price 
of such plates and dies including charges for tangible personal property and art work or any other ser- 
vices that go into the manufacture or delivery thereof. In such cases, the printer's sales invoices and 
records must show that the plates and dies are actually sold to the customer; otherwise, such items will 
be deemed to have been used by the printer, and the cost price of same will be subject to the one per- 
cent rate of tax. 

(f) Sales to commercial printers and publishers of tangible personal property which is not resold as 
such or which does not become an ingredient or component part of the tangible personal property 
which they produce for sale or which is not production machinery or parts therefor and accessories 
thereto are subject to the four percent (three percent until July 16, 1991) state and any applicable local 
sales or use tax without any maximum tax. 

(g) The provisions of Paragraphs (c) and (d) of this Rule have no application to sales of printing 
equipment and supplies to firms which operate print shops for the production of printed matter for 
their own use and not for sale. Purchases of printing equipment and supplies by such firms arc subject 
to the four percent (three percent until July 16, 1991) state and any applicable local sales or use tax. 

History Note: Statutory Authority G.S. 105-164.4; 105-164.5; 105-164.6; 105-/64.13; 
105-262; 105-264;' 
Eff February I, 1976: 
Amended Eff. June 1. 1992; October I. 1991; February I, 19SS; April I, 19S6. 

SECTION .5400 FORMS USED FOR SALES AND USE TAX PURPOSES 



.5458 UTILITIES AND MUNICIPALITIES SALES TAX REPORT FORM: E -500E 

The Utilities and Municipalities Sales Tax Report, Form E-500E, is to be filed by municipalities 
remitting sales tax on electricity and utilities remitting sales tax on electricity, piped gas and telecom- 
munications services. Effective October 1, 1990, the return is to be filed cither monthly or quarterly. 
The return is to be used to remit the tax collected on the above-stated utility services. 

History Note: Statutory Authority G.S. I05-164.4(a)(4a); 105-164.4(a)(4c); 105-262; 
Eff. October 1, 1990; 
Amended Eff June I, 1992. 

.5460 USE TAX REPORT FORM: E-554 

The Use Tax Report Form, E-554, is to be used by nonbusiness purchasers who purchased taxable 
merchandise outside of North Carolina for use in this state. A state and local use tax may be due on 
the purchase price, including transportation charges, regardless of whether the purchase was made in 
the other state or whether the merchandise was delivered to the purchaser in North Carolina. Examples 
of merchandise subject to the use tax include records, books, furniture, jewelry, and clothing purchased 



7:7 NORTH CAROLINA REGISTER July I, 1992 746 



FINAL RULES 



out of state by means including mail or telephone. The tax must be reported on the Use Tax Report 
form, Ii-554, to avoid penalty and interest. 

History Note: Statutory Authority G.S. 105-164.3; 105-164.6; 105-164.8; 105-262; 
Eff. June 1, 1992. 



747 7:7 NORTH CAROLINA REGISTER July I, 1992 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. I43B-30.2(d). 



AGRICULTURE 

Food and Drug Protection 

2 NCAC 9L .0509 - Consultant's Educational and Experience Reqmnts 
Agency Revised Rule 

Plant Industry 

2 NCAC 48 A .0239 - Permit to Sell Bees 

Agency Revised Rule 
2 NCAC4SA .0240 - Form BS-II 

Agency Revised Rule 
2 NCAC 48 A .061 1 - Program Participation and Payment of Fees 

Agency Revised Rule 

ECONOMIC AND COMMUNITY DEVELOPMENT 

Banking Commission 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



05/21192 
05/21/92 



04/16/92 
04/16/92 
04/16/92 
04/16i92 
04/16/92 
04/16/92 



4 NCAC 3C .0807 - Subsidiary Investment Approval 
Agency Revised Rule 


RRC Objection 
Obj. Removed 


04/16/92 
04116192 


4 NCAC 3C .0901 - Books and Records 
Agency Revised Rule 


RRC Objection 
Obj. Removed 


04/16192 
04,16192 


4 NCAC 3C .0903 - Retention: Reproduction/ Disposition of Bank Records RRC Objection 
Agency Revised Rule Obj. Removed 


04/16/92 
04/16/92 


4 NCAC 3D .0302 - Administration of Fiduciary Powers 
Agency Revised Rule 


RRC Objection 
Obj. Removed 


04/16,92 
04/16/92 


4 NCAC 3H .0102 - Regional Bank Holding Company Acquisitions 
Agency Revised Rule 


RRC Objection 
Obj. Removed 


04,16,92 
04/16/92 


Board of Alcoholic Control 






4 NCAC 2R .0^01 - Standards for Commission and Employees 
Agency Revised Rule 


RRC Objection 
Obj. Removed 


05:21192 
05/21/92 


4 NCAC 2R .0702 - Disciplinary Action of Employee 
4 NCAC 2R .1008 - Conflicts of Interest 
Agency Revised Rule 


RRC Objection 
RRC Objection 
Obj. Removed 


05/21/92 
05/21192 
05:21192 


4 NCAC 2R .1205 - Closing of Store 

4 NCAC 2S .0/02 - Applications for Permits: General Provisions 
Agency Revised Rule 


RRC Objection 
RRC Objection 
Obj. Removed 


05'21I92 
05121 "92 
05121/92 


4 NCAC 2S .0106 - Special Requirements for Hotels 
Agency Revised Rule 


RRC Objection 
Obj. Removed 


05/21/92 
05/21/92 


4 NCAC 2S .0503 - Pre-Orders 

4 NCAC 2S .0527 - Guest Rooms Considered Residence 
Agency Revised Rule 


RRC Objection 
RRC Objection 
Obj. Removed 


05 '21 92 
05 21 92 
05/21/92 


4 NCAC 2S .0529 - Mixed Beverages Catering Permits in "Dry Areas" 
Agency Revised Rule 


RRC Objection 
Obj. Removed 


05/21/92 

05/21,92 


4 NCAC 2S .1008 - Advertising of Malt Beverages and Wine by Retailers 


RRC Objection 


05/21/92 



7:7 NORTH CAROLINA REGISTER July I, 1992 



748 



RRC OBJECTIONS 



Agency Revised Rule 
Community Assistance 

4 NCAC 19L .0/03 - Definitions 

Agency Revised Rule 
4 NCAC 19L .0403 - Size and Use of Grants Made to Recipients 

Agency Revised Rule 
4 NCAC 19L .0407 - General Application Requirements 

Agency Revised Rule 
4 NCAC I9L .1301 - Definition 

Agency Revised Rule 

Savings Institutions Division: Savings Institutions Commission 

4 NCAC I6F .0001 - Permitted Activities 

Agency Revised Rule 
4 NCAC 16F .0008 - Finance Subsidiary Fransactions With Parent 

Agency Revised Rule 
4 NCAC 16F .0009 - Issuance of Securities by Finance Subsidiaries 

Agency Revised Rule 
4 NCAC 16F .001 1 - Holding Company Subsidiaries! Finance Subsidiaries 

Agency Revised Rule 



Obj. Removed 05,21)92 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



04 16,92 
04,16,92 
04, 16;92 
05 \ 21)92 
04, 16]92 
05,21192 
04, 16/92 
04, 16/92 



04 16)92 
04,16,92 
04, 16)92 
04,16,92 
04,16,92 
04,16,92 
04 16)92 
04, 16)92 



ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

ISA NCAC 711 .0306 - General Use Standards for Ocean Hazard Areas RRC Objection 05, 21,92 

Environmental Management 

ISA NCAC 2B .0/01 - General Procedures RRC Objection 05 21/92 

Agency Revised Rule Obj. Removed 05, 21)92 

15A NCAC 2B .0/04 - Considerations in Assigning Water Supply Class RRC Objection 05,21)92 

Agency Revised Rule Obj. Removed 05 21)92 

ISA NCAC 2B .0202 - Definitions RRC Objection 05, 21, 92 

Agency Revised Rule Obj. Removed 05,21/92 

ISA NCAC 2B .02/1 - Fresh Surface Water Classifications and Standards RRC Objection 05,21/92 

Agency Revised Rule Obj. Removed 05,21)92 

ISA NCAC 2B .0301 - Classifications: General RRC Objection 05 21/92 

Agency Revised Rule Obj. Removed 05,21/92 



Radiation Protection 

ISA NCAC II .0338 - Specific Terms and Conditions of Licenses 

Agency Revised Rule 
ISA NCAC II .0339 - Fxpiration of Licenses 

Agency Revised Rule 

HUMAN RESOURCES 

Facility' Services 



RRC Objection 04 16)92 

Obj. Removed 04 16)92 

RRC Objection 04 16,92 

Obj. Removed 04 16, 92 



10 NCAC 3J .2801 - Supervision 
Agency Revised Rule 



RRC Objection 04 16 92 
RRC Objection 04 16)92 



749 



7:7 NORTH CAROLINA REGISTER July I, 1992 



RRC OBJECTIONS 



RRC Objection 051 21 192 



Agency Raised Rule Obj. Removed 05/21/92 

10 NCAC 3J 3401 - Applicability - Construction RRC Objection 04/16/92 

Agency Revised Rule RRC Objection 04/16/92 

10 NCAC 3L .0902 - License RRC Objection 04/16/92 

Agency Revised Rule Obj. Removed 04/16/92 

10 NCA C 3L .0903 - Application for and Issuance of License RRC Objection 04/16/92 

Agency Revised Rule Obj. Removed 04/16/92 

10 NCAC 3L .0904 - Inspections RRC Objection 04/16/92 

Agency Revised Rule Obj. Removed 04/16/92 

10 NCAC 3L .0905 - Multiple Premises RRC Objection 04/16/92 

Agency Revised Rule Obj. Removed 04/16/92 

10 NCA C 3L . 1202 - Case Review and Plan of Care RRC Objection 04/ 16/92 

Obj. Removed 05/21/92 

Mental Health: General 

10 NCAC 14M .0~04 - Program Director 

INSURANCE 

Agent Services Division 

// NCAC 6 A .0802 - Licensee Requirements RRC Objection 05/21/92 

Agency Revised Rule Obj. Removed 05/21/92 

LABOR 

Elevator and Amusement Device 

13 SCAC 15 .0402 - Responsibility for Compliance 

Agency Revised Rule 
13 NCAC 15 .0429 - Go Karts 

Agency Revised Rule 

LICENSING BOARDS AND COMMISSIONS 

Cosmetic Art Examiners 

21 NCAC 14N .0/07 - Special Arrangements for Disabled 
Agency Revised Rule 

Dietetics Nutrition 

21 NCAC 17 .0002 - Requirement of License RRC Objection 05^21/92 

Agency Revised Rule Obj. Removed 05/21/92 

21 NCAC 17 .0003 - Qualifications for Licensure RRC Objection 05! 21/92 

Agency Revised Rule Obj. Removed 05/21/92 

21 NCAC 17 .0004 - Applications RRC Objection 05121/92 

Agency Revised Rule Obj. Removed 05/21/92 

21 NCAC 17 .0005 - Examination for Licensure RRC Objection 05/21/92 

Agency Revised Rule Obj. Removed 05 21/92 

21 NCA C 1 7 .0007 - Provisional License RRC Objection 05/21/92 

Agency Re\ised Rule Obj. Removed 05/21/92 

21 NCAC 17 .0012 - Suspension. Revocation and Denial of License RRC Objection 05 21 92 

Agency Revised Rule RRC Objection 05/21/92 
21 NCA C 17 .0014 - Code of Ethics for Professional Practice! Conduct RRC Objection 05/21/92 



RRC Objection 04/16/92 

Obj. Removed 05/21/92 

RRC Objection 04! 16/92 

Obj. Removed 04/16/92 



RRC Objection 05/21/92 
Obj. Removed 05/21/92 



7:7 NORTH CAROLINA REGISTER July I, 1992 



750 



RRC OBJECTIONS 



Agency Revised Rule RRC Objection 05 21, 92 

Nursing 

21 NCAC 36 .030/ - Approval Body RRC Objection 05 21 92 

Agency Revised Rule Obj. Removed 05 21, 92 

STATE PERSONNEL 

Office of State Personnel 

25 XCA C IH .0603 - Special Recruiting Programs RRC Objection 05 21, 92 

25 NCAC U .1005 - Eligibility for Services RRC Objection 05 21 92 



'51 7:7 NORTH CAROLINA REGISTER July I, 1992 



RULES INVALID A TED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when mailable), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



25 NCAC IB .0414 - SITU A TIO.XS IN WHICH A TTORNEYS FEES MA Y BE A WARDED 

Robert Roosevelt Reilly Jr., Administrative Law Judge with the Office of Administrative Hearings, 
declared Rule 25 NCAC IB .0414 void as applied in William Paul Fearrington, Petitioner v. University 
of North Carolina at Chapel Hill, Respondent (91 OSP 0905). 



7:7 NORTH CAROLINA REGISTER July I, 1992 752 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge 
decisions along with an index to all recent contested cases decisions which are filed under 
North Carolina's Administrative Procedure Act. Copies of the decisions listed in the index 
and not published are available upon request for a minimal charge by contacting the Office 
of Administrative Hearings, (919) 733-2698. 



KEY TO CASE CODES 



ABC Alcoholic Beverage Control Com- 
mission 

BDA Board of Dental Examiners 

BME Board of Medical Examiners 

BMS Board of Mortuary Science 

BOG Board of Geologists 

BON Board of Nursing 

BOO Board of Opticians 

CFA Commission for Auctioneers 

COM Department of Economic and Com- 
munity Development 

CPS Department of Crime Control and 

Public Safety 

CSE Child Support Enforcement 

DAG Department of Agriculture 

DCC Department of Community Colleges 

DCR Department of Cultural Resources 

DCS Distribution Child Support 

DI1R Department of Human Resources 

DOA Department of Administration 

DOJ Department of Justice 

DOL Department of Labor 

DSA Department of State Auditor 

DST Department of State Treasurer 



EDC 
EHR 

ESC 
HAF 

HRC 

IND 

INS 

LBC 

MI K 

MIA 

OAH 

OSP 
PHC 

POD 

SOS 

SPA 



WRC 



Department of Public Instruction 
Department of Environment, Health, 
and Natural Resources 
Employment Security Commission 
Hearing Aid Dealers and Fitters 
Board 

Human Relations Commission 
Independent Agencies 
Department of Insurance 
Licensing Board for Contractors 
Milk Commission 

Board of Nursing I lome Administra- 
tors 

Office of Administrative I Iearings 
Department of State Personnel 
Board of Plumbing and Heating 
Contractors 

Board of Podiatry Examiners 
Department of Secretary of State 
Board of Examiners of Speech and 
I anguage Pathologists and Audiol- 
ogists 
Wildlife Resources Commission 



CASK NAME 


CASE 
NUMBER 


AI.J 


TILED 
DATE 


Alyce YV. Pnnglc 

v. 

Department of Education 


88 OSP 0592 
88 EEO 0992 


Morgan 


03/27/92 


Susie Woodle 

v. 

Department of Commerce, State Ports Authority 


88 OSP 1411 


Mann 


03/25/92 


Fernando Demeco White 

v. 

DHR, Caswell Center 


89 OSP 0284 


West 


01/10/92 


Cathy Fayc Barrow 

v. 

DIIR. Craven County Health Department 


89 DHR 0715 


Morgan 


03/09/92 


Barbara Trivette 

v. 

Department of Correction 


90 OSP 0133 


Morgan 


05/20/92 



753 



7:7 NORTH CAROLINA REGISTER July I, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Kenneth W. White 

v. 

Employment Security Commission 


90 OSP 0390 


Becton 


01 13.92 


Craig S. Eury 

v. 

Employment Security Commission 


90 OSP 0391 


Becton 


01/13/92 


Jolene H. Johnson 

v. 

DHR, Division of Medical Assistance 


90 DHR 0685 


Morgan 


02/21/92 


Dover W. Walker 

v. 

Department of Environment, Health, & Natural Resources 


90 OSP 0873 

91 OSP 0180 


Chess 


05 06,92 


Joseph E. Nunes 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1036 


Morgan 


04/15/92 


Sgt. Carl Edmunds 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1135 


Nesnow 


02 04 92 


Rafael Eigueroa 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1138 


Morgan 


03/30/92 


Sammie L. Erazier 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1167 


.Morgan 


03 24 92 


Melvin A. Edwards 

v. 

Department of Correction 


90 OSP 1175 


Nesnow 


06 09 92 


Richard A. Boyett 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1184 


Morgan 


03 30 92 


Lance McQueen 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1204 


Morgan 


03 30/92 


Kcrmit Einney 

v. 

Department of Correction 


90 OSP 1380 


Morrison 


02 12 92 


Larry D. Oates 

v. 
Department of Correction 


90 OSP 1385 


Becton 


04 06/92 


Antonio S. Henderson 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1391 


Becton 


05 04 92 


Fernando Guarachi 

V. 

DHR, Division of Social Services, CSE 


90 CSE 1393 


Morgan 


04 07 92 


Jerry Odell Johnson 

v. 

Sheriffs' Education & Training Standards Comm 


90 DOJ 1411 


Morgan 


1 09 92 



7:7 NORTH CAROLINA REGISTER July I, 1992 



754 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NLMBER 


ALJ 


FILED 
DATE 


Stoncy W. & Darlcne L. Thompson 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 0003 


West 


01/06/92 


Gloria Jones Medbill 

v. 

Children Special Health Services 


91 EHR 0142 


Morgan 


03/11/92 


Shonn S. Peek 

v. 

Bd of Trustees Teachers' & St Emp Retirement Sys 


91 DST0147 


Gray 


04/16/92 


Willie C. Rone 

v. 
DHR, Division of Social Services, CSE 


91 CSE 0166 


Morgan 


04/13/92 


Thomas Such 

v. 

EHR and William W. Cobey Jr. 


91 OSP0202 


Becton 


02/20/92 


N.C. Human Relations Comm. on behalf of Deborah Allen 

v. 
Charles Watkins 


91 HRC 0204 


Morrison 


03/17/92 


Cindy Gale Hyatt 

v. 

Department of Human Resources 


91 DHR 0215 


Morgan 


02/27/92 


Gliston L. Mornsey 

v. 

Bd of Trustees 'Teachers' & St Emp Retirement Sys 


91 DST0232 


West 


02/03/92 


Anthony Caldwell 

v. 

Juvenile Evaluation Center 


91 OSP 0259 


Morgan 


03/12,92 


Kenneth R. Downs, Guardian of 
Mattie M. Greene 

V. 

Teachers' & St Emp Comp Major Medical Plan 


91 DST 0261 


Gray 


02/20/92 


Galen E. Newsom 

v. 

Department of Correction 


91 OSP 0282 


Becton 


06/08/92 


Deborah W. Clark 

v. 

DHR. Dorothea Dix Hospital 


91 OSP 0297 


Nesnow 


01/16/92 


Wade R. Bolton 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0312 


Mann 


01/14/92 


Betty L. Rader 

v. 
Teachers' & St Emp Major Medical Plan 


91 DST 0330 


Morgan 


01 10 92 


Marcia Carpenter 

v. 
l.'NC - Charlotte 


91 OSP 0346 


Mann 


03 12 92 



755 



7:7 NORTH CAROLINA REGISTER July 1,1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


James Arthur Lee 

v. 

NC Crime Victims Compensation Commission 


91 CPS 0355 


Chess 


03 05/92 


Britthaven, Inc. d.'b/a Britthaven of Louisburg 

v. 

DHR, Division of Facility Services, Licensure Section 


91 DHR 0360 


Morgan 


06 04 92 


Fred A. Wilkie 

v. 

Wildlife Resources Commission 


91 OSP 0398 


Chess 


04 20/92 


Michael Darwin White 

v. 

Department of Environment, Health, & Natural Resources 


91 OSP 0413 


Morrison 


02 14/92 


Curtis Wendell Bigelow 

v. 

CCPS, Division of State Highway Patrol 


91 OSP 0418 


West 


03 10 92 


Alcoholic Beverage Control Commission 

v. 

Hilsinger Enterprises, Inc., t/a The Waterin Hole 


91 ABC 0442 


Gray 


01 10 92 


Penny Whitfield 

v. 

Pitt County Mental Health Center 


91 OSP 0465 


Gray 


01 08 92 


Senior Citizens' Home Inc. 

v. 

DHR, Division of Facility Services, Licensure Section 


91 DHR 0467 


Gray 


02 18/92 


Alcoholic Beverage Control Commission 

v. 

Everett Lee Williams Jr., t/a Poor Boys Gameroom 


91 ABC 0531 


Morrison 


01 31 92 


Jonathan Russell McCravey, t/a Encore 

v. 
Alcoholic Beverage Control Commission 


91 ABC 0534 


Morrison 


02 04 92 


Dorothy "Cris" Crissman 

v. 

Department of Public Instruction 


91 OSP 0581 


Morrison 


04 03 92 


Horace Bntton Askew Jr. 

v. 

Sheriffs Education & Training Standards Comm 


91 DOJ 0610 


Reilly 


01 22/92 


Roy L. Keever 

v. 

Department of Correction 


91 OSP 0615 


West 


02 26 92 


Ten Broeck Hospital (Patient #110587, 

Medicaid #124-24-4801-C) 
Ten Broeck Hospital (Patient #110538, 

Medicaid #240334254S) 
Ten Broeck Hospital (Patient #110788, 
Medicaid #900- 12-6762-T) 
v. 
DHR, Division of Medical Assistance 


91 DHR 0618 
91 DHR 0429 
91 DHR 1265 


Morrison 


04 08 92 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



756 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NLMBER 


ALJ 


FILED 
DATE 


Larry Madison Chatman. t a Lam's Convenient Store 

v. 
Alcoholic Beverage Control Commission 


91 ABC 0626 


Gray 


02 20 92 


Lester L. Baker Jr. 

v. 

Bd of Trustees '/Teachers' St Employees' Retirement Sys 


91 DST0639 


Becton 


05 28 92 


Cecil Leon Neal 

v. 

Department of Economic & Community Development 


91 OSP0648 


Mann 


02 0792 


DAG, Food & Drug Protection Div, Pesticide Section 

v. 
D. Carroll Vann 


91 DAG 0654 


Morrison 


01 15 92 


Kidd's Day Care and Preschool 

v. 

Child Day Care Section 


91 DHR 0666 
91 DHR 0666 


Becton 


03 25 92 

04 10 92 


Mary Tisdale 

v. 

Hyde County Health Department and EHR 


91 EHR 0679 


Morgan 


03 23 92 


Alcoholic Beverage Control Commission 

v. 

Kenneth Richard Cooper, t a Silvers 


91 ABC 0680 


Becton 


02 26 92 


Sarah Linda H anions 

v. 

.Alcoholic Beverage Control Commission 


91 ABC 0688 


Mann 


02 27 92 


Keith Hull 

v. 

DHR - Division of Medical Assistance 


91 DHR 0707 


Chess 


02 27 92 


The Carrolton of Williamson. Inc. 

v. 

DHR. Division of Facility Services, Licensure Section 


91 DHR 0740 


Morgan 


06 04 92 


Alcoholic Beverage Control Commission 

v. 

Spring Garden Bar & Grill Inc., 

T A Spring Garden Bar & Grill 


91 ABC 0753 


Morrison 


05 08 92 


Nalley Commercial Properties 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 0757 


Becton 


05 OS 92 


John E. Canup 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0759 


Reilly 


01 13 92 


Falcon Associates, Inc. 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 0767 
91 EHR 0768 


West 


01 06 92 


Michael F. Stone 

v. 

Bd of Trustees Local Gov't Emp Retirement Sys 


91 DST 0771 


W'est 


02 24 92 



:> 



7:7 NORTH CAROLINA REGISTER July I, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Ruben Gene McLean 

v. 

Alcoholic Beverage Control Commission 


91 ABC 0772 


Nesnow 


01/30/92 


Daniel W. Shcrrod 

v. 

DHR, O Berry Center 


91 OSP 0791 


Mann 


06/09/92 


Bobby McEachern 

v. 

Fayettcvillc State University 


91 OSP 0839 


Gray 


02/06/92 


Singletree, Inn 

v. 

EHR, and Stokes County Health Department 


91 EHR 0840 


Nesnow 


01/16/92 


Henry B. Barnhardt 

v. 

Mt Pleasant Vol Fire Dcpt, St Auditor/ Firemen's 

Rescue Squad Workers' Pension Fund 


91 DSA 0843 


Reilly 


01/29/92 


Mackey L. Hall 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0854 


Reilly 


01/17/92 


Gloria J. Woodard 

v. 

Division of Motor Vehicles 


91 OSP 0855 
91 OSP 0855 


Mann 


04 09, 92 
04 13; 92 


Kay Long 

v. 

Department of Human Resources 


91 DHR 0873 


Reilly 


03 17/92 


Alcoholic Beverage Control Commission 

v. 

Mack Ray Chapman, t/a Ponderosa Lounge 


91 ABC 0887 


Morrison 


01/31/92 


Joseph VV. Devlin Jr., Johnson Brothers Carolina Dist 

v. 
Alcoholic Beverage Control Commission 


91 ABC 0890 


West 


02: 11/92 


Ossie Beard 

v. 

EHR & Wastewater Treatment Plant Certification Comm. 


91 EHR 0893 


Nesnow 


03/12/92 


Thomas A. Ritter 

v. 

Department of I luman Resources 


91 OSP 0907 


Mann 


05. 19/92 


Alcoholic Beverage Control Commission 

v. 

Trinity C. C, Inc., t/a Trinity College Cafe 


91 ABC 0915 


West 


02/11/92 


N.C. .Alcoholic Beverage Control Commission 

v. 

Jessie Pendergraft Rigsbee, T/A Club 2000 


91 ABC 0919 


West 


03/12/92 


Alcoholic Beverage Control Commission 

v. 

Cedric Warren Edwards, t/a Great, American Food Store 


91 ABC 0923 


Becton 


02 26/92 



7:7 NORTH CAROLINA REGISTER July I, 1992 



758 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 

m:\iber 


ALJ 


FILED 
DATE 


Department of Environment, Health, & Natural Resources 

v. 
Hulls Sandwich Shop, .Andy Hull 


91 EHR 0936 


West 


01 09 92 


Benjamin C. Dawson 

v. 

Department of Correction, Central Prison 


91 OSP0942 


West 


06 11 92 


Betty Davis db/a ABC Academy 

v. 

DHR. Division of Facility Services, Child Day Care Section 


91 DHR 0955 


Morrison 


01 31/92 


Thomas J. Hailey 

v. 

EHR and Rockingham County Health Department 


91 EHR 0957 


Becton 


01 15.92 


Ronald Waverly Jackson 

v. 

EHR. Division of Maternal & Child Health, WIC Section 


91 EHR 0963 


Gray 


02/24/92 


Century Care of Laurinburg, Inc. 

v. 

DHR, Division of Facility Services, Licensure Section 


91 DHR 0981 


Gray 


03 24 92 


James K. Moss Sr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0985 


Reilly 


05 18 92 


David J. Anderson 

v. 

DHR. Division of Social Services, CSE 


91 CSE 0989 


Morgan 


04 20/92 


David Lee Watson 

v. 
DHR, Division of Social Services, CSE 


91 CSE 0992 


Reilly 


05 18 92 


Herbert R Clayton 

v. 

DHR, Division of Social Sen ices, CSE 


91 CSE 1000 


Mann 


04 02/92 


Roy Shealey 

v. 

Victims Compensation Commission 


91 CPS 1002 


Morrison 


01 31 92 


Joe L. Williams Jr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1014 


Morrison 


04 30/92 


Willie Brad Baldwin 

v. 

DHR, Division of Social Services. CSE 


91 CSE 1020 


Reilly 


01 28/92 


Clinton Dawson 

v. 

N.C. Department of Transportation 


91 OSP 1021 


Mann 


03 05 92 


Benjamin C. Dawson 

V. 

Department of Correction 


91 OSP 1025 


West 


02 IS 92 


Paulette R. Smith 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1026 


Reilly 


02 27 92 



759 



7:7 NORTH CAROLINA REGISTER July I, 1992 



CONTESTED CASE DECISIONS 





CASE NAME 


CASE 
NUMBER 


AL.I 


FILED 
DATE 




Scot Dawson 

v. 
Department of Labor 


91 DOL 1031 


West 


02/24/92 


Luis A. Rosario 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1046 


Morrison 


03,03,92 


Elijah Jefferson Jr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1055 


Gray 


04/20/92 


Randy Quinton King 

v. 

CCPS, State Highway Patrol 


91 OSP 1064 


Gray 


03 24 92 


Ronnie C. Glenn 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1066 


Nesnovv 


05, 05 92 


James D. Robinson 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1068 


Gray 


04 29 92 


William H. Hogsed 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1070 


Nesnow 


03 16 92 


David L. Brown 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1074 


Morrison 


03,31 92 




Gary A. Hamper 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1077 


Morrison 


06/03/92 


Donald M. Washington 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1078 


Morrison 


03 04 92 


William F. Driscoll 

v. 
DHR, Division of Social Services, CSE 


91 CSE 1080 


Mann 


04 28 92 


Melvm L. Miller Sr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1084 


Morrison 


03 16 92 


Bobby G. Evans 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1094 


Rcilly 


01 13 92 


William Louis Timmons 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1104 


Mann 


02 1 8 92 


Gerald Richardson 

V, 

DHR, Division of Social Services, CSE 


91 CSE 1112 


Morgan 


05 06 92 


Edmund D. Hester 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1113 


Mann 


04 21 92 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



760 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Raymond Junior Cagle 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1123 


Mann 


03 30 92 


Richard E. Murray 

v. 

Department of Human Resources 


91 CSE 1134 


Reilly 


01 13 92 


Pathia Miller 

v. 

DHR. Division of facility Services, Child Day Care Section 


91 DHR 1135 


Mann 


03 31 92 


Atlantic Enterprises, Inc. 

v. 

Department of Environment, Health. & Natural Resources 


91 EHR 1136 


Reilly 


01 23 92 


Theresa M. Sparrow 

v. 

Criminal Justice Education & Training Standards Comm 


91 DOJ 1138 


Mann 


02 04 92 


Darrel D. Shields 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1141 


Morgan 


03 30 92 


John H. Price 

v. 

DHR, Division of Social Services, CSh 


91 CSE 1142 


Morgan 


05 06 92 


Jerry Dexter Morrison Sr. 

v. 

DHR. Division of Social Services. CSE 


91 CSE 1144 


Nesnow 


05 21 92 


James A. Hinson 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1154 


Mann 


02 18 92 


George H. Parks Jr. 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1157 


Morrison 


01 27 92 


United Screen Printers. Inc. 

v. 

EHR. Division of Environmental Management 


91 EHR 1179 


Mann 


06 04 92 


Adrian Chandler Harley 

v. 

DHR, Division of Social Services. CSE 


91 CSE 1180 


Nesnow 


02 10 92 


Billy J. Hall 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1182 


Nesnow 


02 10 92 


Donaldson L. Wooten 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1189 


Reilly 


03 1 3 92 


William P. Reid 

v. 

DHR. Division of Social Services. CSE 


91 CSE 1193 


Nesnow 


02 04 92 


Jeddie R. Bowman 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1195 


Morrison 


04 30 92 



'61 



7 :7 NORTH CAROLINA REGISTER July 1, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Ronald G. Bolden 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1208 


Gray 


02/26/92 


Wayne Phillip Irby 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1211 


Nesnow 


02/04/92 


Tony Hollingsworth 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1212 


Nesnow 


02/10/92 


Charles W. Norwood Jr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1215 


Mann 


05/19/92 


Russell G. Ginn 

v. 
Department of Correction 


91 OSP 1224 


Reilly 


02/14/92 


Angela McDonald McDougald 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1227 


Nesnow 


02/28/92 


Sering O. Mbye 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1228 


Mann 


03/11/92 


Jimmie McNair, D.B.A. Pleasure Plus 

v. 

.Alcoholic Beverage Control Commission 


91 ABC 1235 


Gray 


05/04/92 


Michael L. Braton 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1238 


Mann 


06 05 92 


Arthur Thomas McDonald Jr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1252 


Morrison 


03/31/92 


Stanford Pari Rem 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1255 


Nesnow 


02 04/92 


Gene Weaver 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1264 


Reilly 


03/25/92 


James T. White 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1271 


Gray 


02/27/92 


Ronald Brown and Regina Brown 

v. 
DHR. Division of facility Services 


91 DHR 1278 


Bccton 


02/25/92 


Terrance Freeman 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1283 


Nesnow 


05 04/92 


Samuel Armwood 

v. 

David Brantley. Wayne County Clerk of Superior Court 


91 CSE 1285 


Reilly 


02 11 92 



7:7 NORTH CAROLINA REGISTER July I, 1992 



762 



COST EST ED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Peter Gray Coley 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1297 


Reilly 


04 21 92 


Enos M. Cook 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1303 


Morrison 


04 13 92 


Raymond Yaughan 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1304 


Reilly 


03 09 92 


Stevie Wayne Yates 

v. 

EHR and The Jones County Health Department 


91 EHR 1305 


Mann 


05 29 92 


Stanley Wayne Gibbs 

v. 

Elizabeth City State University 


91 OSP 131S 


Gray 


01 14 92 


Alex Page 

v. 
DHR, Division of Facility Services. CSE 


91 CSE 1323 


Reilly 


06 03 92 


David Martin Strode 

v. 

DHR, Division of Social Services. CSE 


91 CSE 1327 


Morgan 


03 19 92 


Man T. Blount 

v. 

EHR and Hyde County Health Department 


91 EHR 1331 


Reilly 


05 21 92 


.Anthony T. McNeill 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1336 


Becton 


04 20 92 


DC. Bass 

v. 
Department of Crime Control and Public Safety 


91 OSP 1341 


Chess 


04 07 92 


Wallace Day Care Center 

v. 

DHR, Division of Facility Services 


91 DHR 1343 


Nesnow 


05 04 92 


Steveason M. Bailey 

v. 

McDowell Technical Community College 


91 OSP 1353 


Morrison 


01 2S 92 


Gary N. Rhoda 
v. 

Department of Correction 


91 OSP 1361 


Nesnow 


01 31 92 


William A. Sellers 

v. 

DHR. Division of Social Services. CSE 


91 CSE 1395 


Gray 


04 01 92 


Marc D. Walker 

v. 

CCPS. Division of State Highway Patrol 


91 OSP 1399 


Morrison 


03 16 92 


Serena Gaynor 

v. 

DHR, Division of Vocational Rehabilitation 


91 OSP 1403 


Gray 


03 02 92 



"63 



7:7 NORTH CAROLINA REGISTER July I, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Betty Davis, D/B/A ABC Academy 

v. 

DHR, Division of Facility Sen ices, Child Day Care Section 


91 DHR 1408 


Chess 


03 30 92 


Bill Jones Jr. and Jessie F. Jones 

v. 
Department of Human Resources 


91 DHR 1411 


Nesnow 


05/01/92 


Leroy Robinson, Frank's Lounge 

v. 

Alcoholic Beverage Control Commission 


91 ABC 1416 


Gray 


05 28, 92 


Charles R. Wellons II 

v. 
Department of Fnvironment, Health, & Natural Resources 


91 EHR 1418 


West 


02 25 92 


Connie Flowers 

v. 

FUR and Hyde County Health Department 


91 EHR 1420 


Reilly 


05 21 92 


Charley Joe Milligan 

v. 

Bd of Trustees Local Gov't Emp Retirement Sys 


91 DST 1424 


Gray 


02 27 92 


Roy Blalock, Deborah Eakins, John Gordon Wright 

v. 

UNC - Chapel Hill 


91 OSP 1429 
91 OSP 1430 


Gray 


03 13/92 


All States Asbestos Professionals 

v. 
EHR, Office of General Counsel 


91 EHR 1432 


Nesnow 


06 02 92 


James R. Fath 

v. 

Crime Victims Compensation Commission 


91 CPS 1451 


Morrison 


04 15 92 


Janet Jhompson 

v. 

DHR, Div Facility Svcs, Durham Cty Dept Social Svcs 


91 DHR 1452 


Gray 


05 19 92 


AB&S Exteriors (Arthur F. Williams Jr., Pres) 

v. 
Department of Labor, Wage & Hour Division 


92 DOL 0001 


Chess 


05 18.92 


Ollie Robertson 

v. 

Crime Victims Compensation Commission 


92 CPS 0002 


Morrison 


04 1 5 92 


New Bern-Craven County Board of Education, 

a Statutory Corporation of North Carolina 

v. 

The Honorable Harlan E. Boyles, State Treasurer, 

The Honorable Fred W. Talton, State Controller, 

The Honorable Wilham W. Cobey, Jr., Sec. of EHR, 

Dr. George T. Everett, Dir., Div. of Environmental Mgmt. 


92 EHR 0003 


Reilly 


03 13 92 


Ellen Allaood. The Red Bear Lounge, Inc., 

4022 North Main St., High Point, NC 27265 

v. 

Alcoholic Beverage Control Commission 


92 ABC 0007 


Chess 


04 07 92 



7:7 NORTH CAROLINA REGISTER July I, 1992 



764 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Robert Gooden 

v. 

Department of Labor, Wage & Hour Division 


92 DOL 0009 


West 


05 14/92 


Mrs. Gillie L. Edwards, Swift Mart #3 

v. 

EHR. Division of Maternal & Child Health. WIC Section 


92 EHR 0022 


Morrison 


05 18/92 


Private Protective Services Board 

v. 

Robert R. Missildine, Jr. 


92 DOJ 0025 


Becton 


03/23/92 


Cindy G. Bartlett 

v. 

Department of Correction 


92 OSP 0029 


Reilly 


03 1692 


Mr Kenneth L. Smith, Pitt County Mart, Inc. 

v. 

EHR, Division of Maternal & Child Health, WIC Section 


92 EHR 0085 


Becton 


04 15/92 


Kurt Hafner 

v. 

N.C. Retirement System et al. 


92 DST 0094 


Gray 


03 04 92 


Margaret Coggins 

v. 

FHR. Division of Maternal & Cluld Health. WIC Section 


92 EHR 0095 


Becton 


04 28 92 


Roy Blalock, Deborah liakins, John Gordon Wnght 

V. 

UNC - Chapel Hill 


92 OSP 0096 


Gray 


03 13 92 


Paula Dail 

v. 

EHR, Division of Maternal & Child Health. WIC Section 


92 EHR 0098 


Becton 


04 28 92 


Youth Focus, Inc. (MID = 239-23-0865T) 

v. 

DHR. Division of Medical Assistance 


92 DHR 0110 


Gray 


02 26 92 


Merle M. Lee 

v. 

Department of Correction 


92 OSP 0167 


Reilly 


06 10 92 


Charles W. Parker 

v. 

Department of Agriculture 


92 OSP 0177 


Reilly 


04 27 92 


Potters Industries, Inc. 

v. 

William J. Stuckey. St Purchasing Off, 

& NC Div of Purchase & Contract 


92 DO A 0180 


Nesnow 


05 20 92 


Brunswick County 

v. 

Department of Environment, Health, & Natural Resources 


92 EHR 0195 


Morrison 


04 2 1 92 


Jessie Draft, Owner Sabrina's Day Care Ctr 

v. 

Department of Human Resources 


92 DHR 0197 


Reilly 


06 01 92 



~65 



7:7 NORTH CAROLINA REGISTER July I, 1992 



CONTESTED CASE DECISIONS 








CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Connestee Falls Property Owners Assoc, Inc. 

v. 

Wildlife Resources Commission 


92 WRC 0207 


Chess 


05 28/92 




John Marley Jr. 

v. 

Department of Correction 


92OSP0213 


Reilly 


05 18,92 


N.C. Private Protective Services Board 

v. 

Lawrence Donnell Morrissey 


92 DOJ 0215 


Chess 


05 13/92 


N.C. Private Protective Services Board 

v. 

Sherrill David Beasley 


92 DOJ 0216 


Chess 


05 13 92 


Percy Lee Davis 

v. 

Caledonia Correctional Inst. 


92 OSP 0230 


West 


06 04 92 


Timothy B. Milton 

v. 

Crime Victims Compensation Commission 


92 CPS 0265 


Rerlly 


05 18 92 


Leon Scott Wilkinson 

v. 

Criminal Justice Education & Training Standards Comm 


92 DOJ 0280 


West 


04 24 92 


Thomas L. Rogers 

v. 

DHR, Division of Youth Services 


92 OSP 0287 


Gray 


04 30/92 


Larry A. Person Sr. 

v. 

Department of Transportation 


92 OSP 0304 


Reilly 


05 28 92 


Paul M. Fratazzi, LPN 

v. 

Polk Youth Institute 


92 OSP 0325 


Nesnow 


05 01/92 


Robert S. Scheer 

v. 

Department of Crime Control & Public Safety 


92 CPS 0339 


Gray 


05 18 92 


Junmy Wayne Livcngood 

v. 
Department of Correction 


92 OSP 0352 


Nesnow 


05 27/92 


Jeffrey Mark Drane 

v. 

Private Protective Services Board 


92 DOJ 0372 


Mann 


05.12/92 


Danny G. Hicks 

v. 
Private Protective Services Board 


92 DOJ 0373 


Mann 


05 12,92 


Max BoUck 

v. 

Private Protective Services Board 


92 DOJ 0374 


Mann 


05 12.92 



7:7 NORTH CAROLINA REGISTER July I, 1992 



766 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Fred Henry Hampton 

v. 

Criminal Justice Education & Training Stds Comm 


92 DOJ 0393 


West 


04 23 92 


N.C. Alarm Systems Licensing Board 

v. 

Eddie Sisk 


92 DOJ 0495 


Nesnow 


06 04 92 



767 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF BURKE 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 

90OSP 1175 



MELVIN A. EDWARDS, 
Petitioner 



N.C. DEPARTMENT OF CORRECTION, 

Respondent 



RECOMMENDED DECISION 



For Respondent: 



The above-captioned matter was heard before Dolores 0. Ncsnow, duly-appointed Administrative 
Law Judge, on January 22 and 23, 1992, in Morganton, North Carolina. 

APPEARANCES 

For Petitioner: Phyllis Palmieri 

Martha Chapman 

Catawba Valley Legal Services, Inc. 

200 Avery Avenue 

Morganton, North Carolina 28655 

ATTORNEYS FOR PETITIONER 

Valerie Bateman, 

Assistant Attorney General 

N.C. Department of Justice 

P.O. Box 629 

Raleigh, North Carolina 27602-0629 

ATTORNEY FOR RESPONDENT 

ISSUE 

Was Petitioner dismissed because of handicap discrimination? 

ST ATI TES AND RULES IN ISSUE 

N.C. Gen. Stat. 126-36, 168A-1, et seg. 

25 N.C. Admin. Code 01D.0518 

State Personnel Manual 

Department of Correction Administrative Memo 1.07.27-88 

PROCEDURAL BACKGROUND 

On November 13, 1990, Petitioner filed a Petition for Contested Case appealing the termination 
of his employment which had been determined by Respondent to be a voluntary resignation. 

On December 26, 1990, Petitioner filed a Prehearing Statement alleging: (a) that he was dismissed 
without just cause and (b) that he was dismissed because of a handicapping condition. 

On December 28, 1990, upon Motion of the Respondent, the undersigned allowed a Stay of the 
contested case to give the Respondent time to investigate the matter further. 

On April 5, 1991, during the Stay period, the Respondent issued another letter of dismissal to 
Petitioner informing him that he was being dismissed retroactive to July 14, 1990. This dismissal was 
based upon unacceptable personal conduct. 



7:7 NORTH CAROLINA REGISTER July /, 1992 



768 



CONTESTED CASE DECISIONS 



On April 8, 1991, the undersigned .Allowed the Petitioner's Motion to Lift the Stay. 

On July 17, 1991, upon Motion of the Respondent, the undersigned issued an Order dismissing 
the Petitioner's just cause issue because he was not a permanent State employee, but allowing his ap- 
peal based on handicap discrimination. 

STIPj I.ATF.n AGREEMENT 

1. The deposition testimony of Jeffrey Becker, Respondent's Personnel Director, was admitted in 
whole in lieu of live testimony, by agreement of the parties. 

STIPULATED FACTS 

1. Petitioner was employed at McDowell Correctional Center on August 10, 1979, with a pay 
grade of 60. 

2. Petitioner was promoted at McDowell on April 1, 1986 from Correctional Officer to 
Correctional Sergeant, with a pay grade of 64. 

3. Petitioner resigned from McDowell for stress-related personal reasons on July 15, 1988. 

4. Petitioner was hired at Western on June 21, 1989, as a Correctional Officer with a pav grade 
of 62. 

5. Petitioner was involuntarily resigned without written notice on August 6, 1990, effective July 
13, 1990 due to his failure to report to work. 

6. On March 26. L991, the Respondent notified Petitioner that the Respondent had determined 
the agency had erroneously accepted Petitioner's resignation without written notice. 

7. On April 5. 1991, Petitioner was dismissed for unacceptable personal conduct for failing to 
report a DWI charge and for failing to report a charge of failure to give proper information at the scene 
of an accident. 

Based upon careful consideration of the stipulations, testimony and evidence presented at the 
hearing, the documents and exhibits received into evidence, and the entire record in this proceeding, the 
undersigned makes the following: 

ADJUDICATED FACTS 



1. Petitioner regularly worked the second shift at Western Youth Institute (WYI). 

2. Petitioner, like other WAT employees, held a part-time position as a clerk in a convenience 
store. The Fast Track, located near WAT. 

3. At 11:00 p.m. on Friday, July 13. 1990. Petitioner began to work the third shift at the Fast 
Track. 

4. At 7:00 a.m. on Saturday. July 14. 1990. Petitioner's relief, a fellow WAT employee, did not 
report for work. Petitioner remained and worked the day shift. 

5. A customer of Petitioner's visited him at the Fast Track and gave him a mixed drink comprised 
of vodka and orange juice. 

6. During that shift, a Morganton Public Safety Officer received a call that Petitioner was acting 
strangely and was having difficulty making change. 

7. The Officer visited the Fast Track and questioned Petitioner but no action was taken. 



'69 7:7 NORTH CAROLINA REGISTER July 1,1992 



CONTESTED CASE DECISIONS 



8. After work, as Petitioner was leaving the Fast Track parking lot, he backed into a vehicle 
driven by Shane Chrisco. Petitioner stopped, spoke to Chrisco and provided Chrisco with insurance 
information. 

9. Neither Chrisco nor Petitioner called the police to investigate the accident. 

10. Petitioner was scheduled to report to the second shift at WYI on July 14, 1990, but, as a result 
of working sixteen hours at the Fast Track, he was not going to report for work at WYI. 

1 1. Petitioner intended to drive home and call in his absence to WYI to comply with WYI's policy 
that an employee call in absences to the shift lieutenant on the shift to which that employee is assigned. 

12. On his way home, at approximately 2:45 p.m., Petitioner ran a stop sign and collided with 
another automobile. 

13. Petitioner was transported to and treated at the emergency room of McDowell General Hos- 
pital in McDowell County as a result of the accident. He was later charged with DWI. 

14. At some time on July 14, 1990, Petitioner's wife, Evangeline "Angje" Edwards called WYI 
to report that Petitioner had been in a wreck and was in the hospital. 

15. Mrs. Edwards speaks with a heavy accent and is sometimes difficult to understand. 

16. Later that day, I'etitioner was released from the hospital and went home. 

17. At some time after the parking lot accident, Mr. Chrisco discovered that he did not have the 
correct insurance information. He then called the police and reported the accident. 

18. When Mr. Chrisco reported the parking lot accident to the police, it was listed by the police 
as a hit and run and a warrant was issued for the Petitioner. 

19. During the night the Petitioner began to turn blue, was noncommunicative and showed other 
signs of distress. Petitioner's wife brought him to the emergency room at the Memorial Mission Hos- 
pital in Ashcville. Petitioner was tested and later released. 

20. On Sunday. July 15, 1990. Ms. Edwards called WYI and told them that her husband could 
not report for work. When asked to explain what had happened or when Petitioner would be return- 
ing, Mrs. Edwards would not or could not provide any further information. 

21. Upon recommendation of the emergency room physician at Memorial Mission Hospital, on 
Monday evening, July 16, 1990, Petitioner and his wife, Evangeline Edwards, met with Dr. Stephen 
Pike, Ph.D., a clinical psychologist. 

22. Petitioner asked Dr. Pike to contact his employer and signed a release allowing the doctor to 
talk with his employer. 

23. On July 17, 1990, Ms. Edwards again contacted Lt. Steve Bailey and informed him that 
Petitioner was not coming to work and that he was not in the hospital but that he was unable to come 
to the phone and was unable to work. She explained he was under a doctor's care, identified the doctor 
as Dr. Pike, and informed Bailey that the doctor would contact Bailey to explain what was going on 
with Petitioner. 

24. I'etitioner was not scheduled to work on July 18 or 19. 

25. Lt. Mace attempted to contact the Petitioner on several occasions but was not successful. 
On each occasion, either there would be no answer, or the Petitioner would not be at home, or he was 
at home but his wife would not let him talk with Lt. Mace. 



7:7 NORTH CAROLINA REGISTER July I, 1992 770 



CONTESTED CASE DECISIONS 



26. From July 14, 1990. until August 1, 1990, Petitioner was absent from work. 

27. On July 24, 1990, Lt. Mace called the Petitioner's home and spoke with Mrs. Edwards to 
advise her that the doctor had not called. 

28. When Lt. Mace finally made contact with Mrs. Edwards, he pleaded with Mrs.. Edwards to 
allow him to talk with the Petitioner. He told her that it was very important for the Petitioner to get 
in contact with the Unit. Mrs. Edwards told Lt. Mace that the Petitioner could not come to the phone, 
that his doctor would be calling them, she refused to discuss his condition, and started to cry. 

24. later on July 24, 1990, Lt. Bailey was contacted by Dr. Pike and informed that Petitioner 
was being treated for depression. 

30. Earlier. Lieutenant Bailey had been directed to investigate the Petitioner's absence because 
rumors had circulated that Petitioner had been arrested for DWI, possibly involving a hit and run. 

31. On Monday. July 25, 1990. Lt. Mace submitted his report to Leon Morrow, Superintendent 
of WYI. which indicated in part that Petitioner had hit a car in the lot of the Fast Track on Saturday, 
July 14. 1990. and that an incident report was filed on Sunday. July 15, 1990. which indicated that 
Petitioner had given the owner of the vehicle incorrect insurance information. 

32. Prior to July 25, 1990. Petitioner himself did not contact his employer to report his absences 
or his DWI charge. 

33. Although WYI encourages its employees to call in their own absences to their shift Lieutenants, 
calls from family members are accepted. 

34. Earlier, in July of 1989, Petitioner received an oral warning for being absent without notifying 
his supervisors. 

35. On July 25. 1990, because Dr. Pike encouraged him to do so. Petitioner contacted Super- 
intendent Morrow, and discussed his treatment for depression, his problems, counseling, and 
medication. He also reported his DWI. 

36. During that conversation, Morrow requested that Petitioner submit a written statement in- 
cluding a request for leave and a statement concerning his legal problems, which Petitioner subse- 
quently did. 

37. Morrow asked Petitioner when he thought he could return to work and Petitioner indicated 
that he would return to work on August 1. 1990. 

38. Morrow told Petitioner on July 25, 1990, that he would "make no promises" concerning 
granting Mr. Edwards' request for leave, but that Petitioner should come to see him before his 3:00 p.m. 
shift on August 1 and they would discuss Petitioner's request for leave. 

39. At that time, Mr. Morrow believed that he did not have enough information to make a deci- 
sion about whether disciplinary action should be taken against the Petitioner because he had received 
conflicting reports about whether the Petitioner had actually been in the hospital or in jail. 

40. Employee absences are of critical concern to prison administrations because the inmate pop- 
ulation must be monitored and controlled and a full complement of correctional officers is essential. 

4 1 . The sick leave policy for the state provides that the agency may require a statement from a 
medical doctor or other acceptable proof that the employee was unable to work because of personal 
illness, family illness or death in the family. (25 NCAC IE .0304) 



771 7:7 NORTH CAROLINA REGISTER July I, 1992 



CONTESTED CASE DECISIONS 



42. On July 31, 1990, Petitioner obtained a letter from Dr. Pike verifying that he had been under 
the doctor's care and was released to work on August 1, 1990. 

43. On July 31, 1990, Petitioner obtained a return to work slip from Dr. Uhren, a family physician 
who had seen Petitioner during this time and prescribed an antidepressant. The note verified that he 
had been under the doctor's care from 7/14/90 to 7/31/90. 

44. Lt. Mace was instructed to call the Petitioner on July 31 and remind him that he was expected 
to report to work the next day. Lt. Mace spoke with Petitioner's wife and asked her to give him the 
message. 

45. At approximately 9:00 a.m. on August 1, 1990, Petitioner went to the magistrate's office and 
accepted service of a warrant for hit and run. 

46. On August 1, 1990, Petitioner went to WYI at approximately 1:00 p.m. to check on the status 
of his leave request. Morrow was not in so Petitioner went to the assembly room, the room where the 
officers meet prior to shift change, and checked out the duty roster. 

47. The shift change was not scheduled to occur until 3:00 p.m. and the officers meet in the as- 
sembly room for "report" at 2:45 p.m. 

48. Petitioner did not see his name on the duty roster where it normally would be. Petitioner 
believed that elimination of an officer's name from the duty roster meant that the officer had been 
separated from employment. 

49. Because Morrow had made no assurances to Petitioner that his request for leave would be 
granted, Petitioner concluded that he was discharged. He left the facility to avoid embarrassment. 

50. On August 1, Mr. Morrow had been on the upper floors of the building from lunch time to 
about two-thirty. Mr. Morrow came back to his office at 2:30 or 2:45 and waited for the Petitioner to 
come in. A few minutes after three, Mr. Morrow proceeded to walk down the hallway and look for 
the Petitioner. He did not see the Petitioner. Mr. .Morrow asked his secretary and other persons in 
the office if they had seen him and they had not. 

51. Mr. Morrow had planned to give the Petitioner a chance to explain his absences and the na- 
ture of the charges against him. 

52. Mr. Morrow determined that the Petitioner had failed to report to work. Mr. Morrow did 
not consider that there was some miscommunication between himself and the Petitioner because their 
telephone conversation on July 25 had been clear and because the Petitioner had been recently re- 
minded the day before to come in. 

53. Ms. Billie Cox, WYI's personnel clerk, saw Petitioner sometime around lunchtime on August 
1, 1990. Ms. Cox saw Petitioner walk into Morrow's secretary's office, then come out and wait in the 
hall for several minutes. She later told Morrow that Petitioner had been there. 

54. Mr. Morrow considered the reports that the Petitioner had been involved in a hit and run 
accident, a stop sign violation, a DWI violation and what appeared to be at least two different car ac- 
cidents in two different counties to be reports of serious criminal offenses. The reports of Petitioner's 
DWI appeared serious because they appeared to involve a hit and run accident. 

55. Later on August 1, 1990, Leon Morrow contacted the DOC Personnel Office in Raleigh and 
asked what to do with an employee who did not come in as requested. Morrow was directed to the 
policy on "voluntary resignation without notice." 25 NCAC 01D .0518 

56. A certified letter dated August 6, 1990, signed by Leon Morrow, was sent to Petitioner, in- 
forming him that the DOC had decided to accept Petitioner's "voluntary resignation without notice." 



7:7 NORTH CAROLINA REGISTER July I, 1992 772 



CONTESTED CASE DECISIONS 



57. On November 8, 1990, Melvin Edwards fded a petition for a contested case hearing. 

58. On December 21, 1990, counsel for the DOC sought and was granted a stay of the proceedings 
in this contested case to allow for an investigation surrounding the Petitioner's voluntary' resignation. 

59. On March 26, 1991, Petitioner received a letter from the DOC signed by L.V. Stephenson, 
that advised him that the DOC had "erroneously accepted (his) resignation without notice" and di- 
rected him to appear at a predismissal conference at WYI on April 4, 1991. 

60. On April 4, 1991, Petitioner responded to the letter through his counsel, and provided an af- 
fidavit responding to the grounds for dismissal listed. 

61. Petitioner was then notified by a letter dated April 5, 1991, signed by L.V. Stephenson, that 
he had been dismissed, effective July 14, 1990, for unacceptable personal conduct for failing to report 
a DWI charge, for failing to report a charge of fadure to give proper information at the scene of an 
accident and for violating the departmental rule, DOC Administrative Memo 1.07.27-88, which requires 
DOC employees to report criminal charges within 24 hours. 

62. The policy on secondary employment provides that: 

The employment responsibilities to the state are primary for any employee working full-time; 
any other employment in which that person chooses to engage is secondary. An employee 
shall have approval from the agency head before engaging in any secondary employment. 
The purpose of this approval procedure is to determine that the secondary employment does 
not have an adverse effect on the primary employment and does not create a conflict of in- 
terest. (25 NCAC 1C .0701) 

63. Petitioner understood that his secondary employment was never to interfere with his primary 
obligation to the Department of Correction. 

Based upon the above Findings of Fact, the undersigned makes the following: 

( ()N( I I SIONS OF I AW 

1 In a discrimination case, Petitioner has the burden of proof and must establish a prima facie 
case of discrimination. If the Petitioner establishes a prima facie case, the employer must produce ev- 
idence of a legitimate, non-discriminatory reason for Petitioner's discharge. Once the employer has 
rebutted the prima facie case, the employee has the opportunity to demonstrate that the employer's 
proffered reasons for its decision were pretextural. 

2. In order to establish his prima facie case, Petitioner must first establish that he is a member 
of a protected class, i.e., a handicapped person. 

3. N.C. Gen. Stat. 168-1 provides that the definition of handicapped persons shall include those 
individuals with physical, mental and visual disabilities. 

4. N.C. Gen. Stat. 168A-3 defines handicapped person as any person who has a physical or 
mental impairment which substantially limits one or more major life activities. Mental impairment is 
defined as any mental disorder, such as mental retardation, organic brain syndrome, mental illnesses, 
specific learning disabilities and other developmental disabilities but does not include any disorder, 
condition or disfigurement which is temporary in nature leaving no residual impairment. 

5. In Pressman v_ FNC , 78 N.C. App 296, 337 S.E.2d 644 (1985), cert, granted, 315 N.C. 589, 
341 S.E.2d 28 ( l l )S6), it was determined that a person suffering from occasional episodes of stress, de- 
pression and mental exhaustion is not a "handicapped person" as defined by Chapter 168. 

6. Petitioner's episodes of stress and depression is not a handicapping condition such as to altord 
him the protections of that protected category. 



773 7:7 NORTH CAROLINA REGISTER July I, 1992 



CONTESTED CASE DECISIONS 



7. Petitioner has, therefore, failed to establish a prima facie case of handicap discrimination. 

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the 
following: 

RECOMMENDED DECISION 

That Respondent's decision to terminate Petitioner's employment be affirmed. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Adminis- 
trative Hearings, P.O. Drawer 27447. Raleigh, N.C. 27611-7447, in accordance with North Carolina 
General Statute 150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an op- 
portunity to file exceptions to this recommended decision and to present written arguments to those in 
the agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and 
to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina State 
Personnel Commission. 

This the 9th day of June, 1992. 



Dolores O. Nesnow 
Administrative Law Judge 



7:7 NORTH CAROLINA REGISTER July 1, 1992 774 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 
COUNTY OF WAKE 91 OSP 0282 



GALEN E. NEWSOM, ) 

Petitioner ) 



) 

) RECOMMENDED DECISION 



) 
N.C. DEPARTMENT OF CORRECTION ) 

Respondent ) 



This matter was heard before Brenda B. Becton, Administrative Law Judge, on October 28, 1991 
and January 8, 1992 in Raleigh, North Carolina. The record closed on April 24, 1992 when the parties 
completed the filing of their post-hearing submissions. 

APPEARANCES 



For Petitioner: BROUGHTON, WILKENS, WEBB & JERNIGAN, Attorneys at Law, 

Raleigh, North Carolina; William Woodward Webb appearing. 

For Respondent: Valerie I . Bateman, Assistant Attorney General, North Carolina Department 

of Justice, Raleigh, North Carolina. 

ISSUES 

1. Did the Petitioner engage in the alleged conduct'? 

2. If so, does such conduct constitute unacceptable personal conduct within the meaning of North 
Carolina General Statutes section 126-35 and the rules and policies of the Office of State Personnel 
and the Respondent-Agency? 

3. Did the Respondent conduct a meaningful pre-dismissal conference with the Petitioner? 

4. Did the Respondent have "just cause" to dismiss the Petitioner? 

STATUTES AND RULES INVOLVED 

N.C. Gen. Stat. §126-35 

25 NCAC U .0606 - .0608 

FINDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses, and other competent and 
admissible evidence, it is found as a fact that: 

1. From October 21, 1985 until December 14, 1990, the Petitioner, a permanent State employee, was 
employed as a probation, parole officer and later as a Correctional Trainer II with the Respondent. 

2. On December 12. 1990, between the hours of 6:00 p.m. and 6:30 p.m. at the Corner Cafe in 
Salemburg, North Carolina, the Petitioner, while conversing about various incidents involving 
firearms, unholstered his State issued weapon, placed the barrel to the head of Mr. Benny Pope, 
and said, "I'm going to kill you!" in order to illustrate an incident that had happened to him and 
to show how quickly an incident can occur. The Petitioner immediately reholstered his weapon 
and the group he was dining with concluded their meal. 



775 7:7 NORTH CAROLINA REGISTER July 1, 1992 



CONTESTED CASE DECISIONS 



3. The Petitioner was a firearms instructor with the Respondent. Mr. Pope is also an instructor with 
the Respondent's Office of Staff Development and 1 raining. 

4. The Petitioner's weapon was unloaded. It was a standard operating procedure for the firearms 
instructors to check their weapons for ammunition and to remove any ammunition before leaving 
the range. In addition, the Petitioner never carries a loaded w : eapon while he is conducting firearms 
training. 

5. Mr. Pope and the two trainees seated with the Petitioner were all aware that the Petitioner was 
demonstrating an incident that had occurred previously when he unholstered his weapon. 

6. There were several people in the restaurant who witnessed the Petitioner pointing the gun at Mr. 
Pope. No one, however, said anything to the Petitioner or to the people he was with at the time 
the incident took place. 

7. Mr. Pope did not report the incident to anyone at work. The Respondent apparently learned of 
the incident from other law enforcement personnel who were also patronizing the Corner Cafe. 

8. Prior to this incident there was no written policy prohibiting demonstrations of various law 
enforcement techniques from occurring at the Corner Cafe which is frequented by law enforcement 
officials, including instructors and trainees. 

9. At the time that this incident occurred, the Respondent did not have any written policy, rule, or 
regulation regarding appropriate or inappropriate use of weapons. 

10. Anne B. Porter is the Operations Manager for the Respondent's Office of Staff Development and 
Training ("OSDT") and she supervised the Petitioner's supervisor, Hank Snyder, a Training Co- 
ordinator. 

11. At approximately 1:00 p.m. on December 13, 1990, Ms. Porter was notified by Dan Lilly, another 
Operations Manager at OSDT, of the incident involving the Petitioner that had occurred on De- 
cember 12, 1990. Ms. Porter accompanied Mr. Lilly and Mr. Monroe Waters, the Deputy Sec- 
retary of the Department of Corrections, to Salemburg to investigate the incident. 

12. The Justice Academy at Salemburg Academy is used by the Respondent as a training site and the 
Petitioner had been involved in training a probation parole intensive officer's class. 

13. When Ms. Porter, Mr. Lilly, and Mr. Waters arrived at the Academy, the Director had arranged 
for them to meet with some police officers who had witnessed the gun incident in the office of the 
Assistant Director of the Academy. 

14. Subsequently, on the evening of December 13, 1990. the Petitioner, upon admitting that the inci- 
dent at the Comer Cafe did occur, was instructed to relinquish his State automobile, pager, and 
all State issued equipment immediately and not to teach that evening or to go near any training 
being conducted by the Respondent's employees. He was also told to report to the Office of Staff 
Development and Training the next morning. 

15. On the morning of December 14, 1990 at approximately 7:45 a.m., the Petitioner sought out Bertis 
H. Sellers, the Director of the Office of Staff Development and Training, to discuss the December 
12, 1990 incident and to determine the effect the incident was going to have on his employment 
with the Respondent. Because Mr. Sellers had a meeting to attend, the conversation between him 
and the Petitioner was brief. Mr. Sellers listened to what the Petitioner had to say about the in- 
cident and about keeping his job, and then told the Petitioner that he did not have all the facts yet 
that would enable him to discuss the incident with him and that he would discuss the incident with 
later. 

16. At approximately 10:00 a.m. on December 14, 1990, the Petitioner was advised by Ms. Porter to 
return home and await further instructions. 



7:7 NORTH CAROLINA REGISTER July I, 1992 776 



CONTESTED CASE DECISIONS 



17. During the day, while the Petitioner was at home, meetings between management officials of the 
agency took place. 

18. At approximately 2:00 p.m., the Petitioner received a telephone call from Ms. Porter instructing 
him to return to work. He was not informed of the specific reason why he was being recalled. 

19. The Petitioner returned to work at about 2:30 p.m. and waited in the anteroom of the Director's 
office until Mr. Sellers was ready to meet with him. He was not informed, while he was waiting, 
of the precise nature of the meeting with Mr. Sellers. He had not been instructed to be prepared 
to defend or explain his action on the evening of December 12, 1990. He had not been told that 
he could bring witnesses or that he could request that witnesses be present for examination or 
cross-examination. 

20. Sometime after 4:00 p.m. on December 14, 1990, the Petitioner met with Mr. Sellers in the pres- 
ence of Ms. Porter. When the Petitioner entered the office, Mr. Sellers told him that they were 
there to discuss the incident that had taken place in the Corner Cafe in Salemburg, and then 
handed the Petitioner a pre-dismissal conference form and asked him to sign it. 

21. After reading the pre-dismissal form, the Petitioner refused to sign it because no conference had 
yet taken place and he felt that his signing the form would verify and acknowledge that he had been 
given a meaningful pre-dismissal conference. Petitioner then asked what was the pomt of having 
a conference since Mr. Sellers already had a dismissal letter laying on his desk. 

22. After the Petitioner refused to sign the pre-dismissal conference form, Mr. Sellers told the Petitioner 
that he had no choice but to dismiss him and handed the Petitioner a previously prepared letter 
of dismissal which contained the allegations against the petitioner and asked him if he had anything 
to say or write in response to the allegations. The Petitioner's response was, ''What's the point?" 

23. When Mr. Sellers met with the Petitioner on the afternoon of December 14, 1990, he knew that 
he was going to dismiss the Petitioner unless the Petitioner could offer some reason why he should 
not do so. Although he had prepared the letter dismissing the Petitioner prior to the pre-dismissal 
conference, Mr. Sellers would have torn the dismissal letter up had the Petitioner given him some 
reason to change his mind about dismissing him. 

24. Students in firearms classes are taught to never unholster their weapon, unless it is being used in 
self-defense, and to never point their weapon at other people. 

25. The Petitioner testified that he did not want his job with the Respondent back, that he wanted to 
be allowed to resign, and that he wanted to receive three and one-half months salary and his at- 
torney's fees. 

Based on the foregoing Findings of Fact, the undersigned Administrative Faw Judge makes the 
following: 

CONCLUSIONS OF LAW 

1. North Carolina General Statutes section 126-35 provides, in pertinent part, as follows: 

No permanent employee subject to the State Personnel Act shall be discharged, suspended, 
or reduced in pay or position, except for just cause. 

2. A permanent State employee may be dismissed for ( 1 ) inadequate performance of duties or (2) 
personal conduct detnmental to state service. I eipjhart y_ North Carolina School of the Arts. 80 
N.C. App. 339, 342 S.E. 2d 914 (1986). 



777 7:7 NORTH CAROLINA REGISTER July 1, 1992 



CONTESTED CASE DECISIONS 



3. Prior to dismissal for cause relating to performance of duties, a permanent State employee is entitled 

to three separate warnings that his her performance is unsatisfactory. Jones v\ Department of 
Human Resources. 300 N.C. 687, 268 S.E.2d 500 (1980). 

4. Dismissal for personal conduct detrimental to state service requires no prior warning. 25 NCAC 
U .0608. 

5. The Petitioner does not contest the Respondent's finding that the incident took place on December 

12, 1990. Rather, even though he concedes that his action reflected poor judgment on his part, 
he argues that his conduct did justify his dismissal. The issue, then, is when is the failure to ex- 
ercise good judgment an offense for which one could reasonably be expected to be dismissed 
without warning. 

6. In order for actions resulting from the failure to exercise good judgment to constitute a dismissible 
offense, the conduct must have been detrimental to state service. Thus, it is necessary that the 
Petitioner's actions have affected his credibility and ability to perform his job duties effectively. 

7. There was testimony that firearms instructors teach their trainees to never unholster their weapon 
unless it it needed for self-defense and to never point a weapon at anyone. Obviously, while this 
canon of conduct is a good practice in general, it specifically applies to a loaded weapon since the 
gun has to be loaded in order to defend oneself with it, and since there is no danger that one might 
accidentally shoot someone with an unloaded weapon. 

8. Certainly, if the gun had been loaded or if an assault had been perpetrated, then the Petitioner's 
actions would have warranted immediate dismissal on the basis of unacceptable personal conduct. 
In this instance, however, what at first seems to be egregious conduct on behalf of the Petitioner 
appears less so when one is aware of all of the facts. The facts in this case indicate that: 

a) The weapon was not loaded; 

b) Neither the person at whom the Petitioner pointed the gun nor the others sitting at the table 
were apprehensive or threatened; and 

c) The incident occurred because the Petitioner was attempting to illustrate a work related incident 
for two of the trainees in the class he was currently teaching. 

9. The totality of the circumstances surrounding the incident in the Corner Cafe suggest that there is 
nothing about the Petitioner's conduct that resulted in any detriment to the State. The Petitioner 
did not violate any written policy, rule, or regulation. There has been no showing that the 
Petitioner's conduct rendered him unable to effectively perform his job duties. A bare allegation 
that the Petitioner's conduct caused the Respondent embarrassment is not sufficient It is 
incumbent upon the Respondent to demonstrate the nature and the extent of the embarrassment 
that Petitioner's conduct caused and to show some concrete detriment to the State. 

10. The Petitioner's conduct is more appropriately labeled as a careless error or negligent conduct, both 
of which fall within the category' of inadequate job performance for which an employee is entitled 
to receive three separate warnings prior to being dismissed. 

11. The Respondent has failed to prove by the preponderance of the evidence that the Petitioner's 
actions on December 12, 1990 constituted unacceptable personal conduct within the meaning of 
section 126-35 of the North Carolina General Statutes and the regulations of the Office of State 
Personnel and the Respondent-Agency. 

12. The Respondent gave the Petitioner an opportunity to be heard and an opportunity to invoke the 
discretion of the decision maker in his favor before the final decision to terminate his employment 
was made. The Petitioner, however, failed to take advantage of the opportunity offered him at 
his pre-dismissal conference because he felt, erroneously, that nothing he could say would alter the 
decision to terminate his employment. The Petitioner received all the protections that the due 
process clause was intended to give and the Respondent followed the appropriate procedures 
throughout the dismissal process. 



7:7 NORTH CAROLINA REGISTER July I, 1992 778 



CONTESTED CASE DECISIONS 



RECOMMENDED DECISION 

The State Personnel Commission will make the Final Decision in this contested case. It is 
recommended that the Commission adopt the Findings of Fact and Conclusions of Law set forth 
above and reverse the agency's decision to dismiss the Petitioner and permit the Petitioner to resign 
from his position with the Respondent. The Commission should award the Petitioner appropriate 
back pay from December 14, 1990 until the Petitioner's subsequent employment by the Secretary 
of State and thereafter, the differential between his salary with the Respondent as of December 14, 
1990 and that which Petitioner is earning with the Secretary of State, and reasonable attorney fees. 

NOTICE 

Before the Commission makes the FINAL DECISION, it is required by North Carolina Gen- 
eral Statutes section 150B-36(a) to give each party an opportunity to file exceptions to this RE- 
COMMENDED DECISION, and to present written arguments to those in the agency who will 
make the final decision. 

The agency is required by North Carolina General Statutes section 150B-36(b) to serve a copy 
of the Final Decision on all parties and to furnish a copy to the Parties' attorney of record and to 
the Office of Administrative Hearings. 

This the 8th day of June. 1992. 



Brenda B. Becton 
Administrative Law Judge 



779 7:7 NORTH CAROLINA REGISTER July I, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

91 OSP079I 



DANIEL W. SHERROD, 

Petitioner 



NORTH CAROLINA DEPARTMENT OF 
HUMAN RESOURCES, O'BERRY CENTER, 

Respondent 



RECOMMENDED DECISION 



The above-captioncd matter was heard before Julian Mann, III, Chief Administrative law Judge, 
on January 21, 1992, in Raleigh, Wake County, North Carolina. The evidentiary hearing closed on 
January 21, 1992. The parties' attorneys of record were given 30 days from receipt of the transcript to 
file proposed Findings of Fact and Conclusions of Law. The record closed upon receipt of the docu- 
ments described above on April 27, 1992. 

APPEARANCES 



For Petitioner: 



For Respondent: 



Andre L. Carson 
Carson Legal Services 
3305- B Durham Dnve 
Raleigh, North Carolina 27603 

Michelle B. McPherson 

Assistant Attorney General 

N.C. Department of Justice 

P.O. Box 629 

Raleigh, North Carolina 27602-0629 

WITNESSES 



For Petitioner: 

Daniel Sherrod (Petitioner) 
Shelba G. Poole 
Sula N. Ridings 

For Respondent: 

Willie R. Patterson 
Raja Chowdhry 
James E. Myers 
Sula N. Ridings 
.Anne McLamb 

EXHIBITS 

For Petitioner: 

Petitioner's Fxhibits #1. 2. 3, 4, 5, 6, 7, S, 9, 10, 11, 12. 13, 14, 15, 18, 19, 20. 21. 22 and 24 

For Respondent: 

Respondents Exhibits #2. 3, 4, 5, 6, 6A, 6B, 6C, 6D, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17. 18, 19, 
20, 21 and 22 



7:7 NORTH CAROLINA REGISTER July I, 1992 



7S0 



CONTESTED CASE DECISIONS 



ISSUE 

Whether Respondent discriminated against Petitioner on the basis of his religion in violation of 
G.S. 126-36. 

STIPULATIONS 

On the 21st day of January, 1992, the parties filed a Prehearing Order, which contained, inter alia 
the following Stipulations: 

"1. It is stipulated that all parties are properly before the court, and the court has jurisdiction of 
the parties and of the subject matter. 

2. It is stipulated that all parties have been correctly designated, and there is no question as to 
misjoinder or nonjoinder of parties. 

3. In addition to the other stipulations contained herein, the parties hereto stipulate and agree 
with respect to the following undisputed facts: 

a. Petitioner was hired on Apnl 23, 1990, as a lead nurse at the pay grade of 69. 

b. Petitioner was dismissed on July 31, 1991, for insubordination. 

c. Petitioner was a permanent State employee at the time he was dismissed. 

4. It is stipulated that each of the exhibits identified by the Petitioner herein is genuine and, if 
relevant and material, may be received in evidence without further identification or proof. 

5. It is stipulated and agreed that each of the exhibits identified by the Respondent is genuine and, 
if relevant and material, may be received in evidence without further identification or proof." 

Based upon the Stipulations of the parties, the pleadings, and by the greater weight of the evidence 
admitted at the hearing, which by its nature requires determinations of credibility based on personal 
observation of witness demeanor, the Chief Administrative Law Judge makes the following: 

FINDINGS OK FACT 

1. The Office of Administrative Hearings has jurisdiction over the parties and subject matter of 
this contested case pursuant to Chapters 126 and 150B of the North Carolina General Statutes. 

2. Petitioner is a permanent State employee and resides in Micro, North Carolina. 

3. Respondent, an agency of the State of North Carolina, was Petitioner's employer. 

4. Petitioner was hired by Respondent on April 23, 1990. 

5. Petitioner held the position of lead nurse at O'Bcrry Center, Respondent's residential facility 
for the mentally retarded. 

6. As a lead nurse, Petitioner was responsible for the total care of the clients under his care and 
tor supervising the other nurses on his shift. 

7. At all times relevant herein, Petitioner was a member of the Worldwide Church of God. 

8. As a member of the Worldwide Church of "God. Petitioner holds the genuine belief that he 
may not work on his Sabbath, which extends from sundown on Friday until sundown on Saturday and 
on his seven holy days, which occur at various times during the year. (Petitioner's Exhibit =1 and 
Respondent's Proposed Findings of Fact #5) 



781 7:7 NORTH CAROLINA REGISTER July I, 1992 



CONTESTED CASE DECISIONS 



9. In conversations with Ms. Sula Ridings and Ms. Willie Patterson, Petitioner informed Re- 
spondent of his religious belief concerning the Sabbath as found above, prior to being hired. 
(Petitioner's Exhibit #18) 

10. Through these agents and employees, Respondent indicated that there would be no problem 
in accommodating Petitioner's work schedule in response to his religious belief.* 

11. Prior to commencing work with the Respondent, the Petitioner offered to work any shift, any 
days, and any hours other than the Sabbath and holy days. 

12. Petitioner was a dependable source to use in providing coverage when there was a shortage 
of nurses. (Petitioner's Exhibit #14) 

13. Erom April 23, 1990, through on or about April 11, 1991, Respondent acknowledged and 
accommodated Petitioner's strict observance of the Sabbath Holy Day and Petitioner never worked 
from sundown Friday until sundown Saturday. 

14. Petitioner was informed through a Memorandum, dated April 1 1, 1991, that the Respondent 
would no longer be able to honor its commitment to accommodate Petitioner's religious beliefs con- 
cerning the Sabbath. (Respondent's Exhibit #3) 

15. Petitioner was informed that he would be required to come in at 5:00 p.m. on alternating 
Saturdays. (Respondent's Exhibit #3) 

16. This new schedule conflicted with his sundown Sabbath observance for the hours between 
5:00 p.m. and sunset, on alternating Saturdays. Therefore, on or after April 11, 1991, Respondent did 
not provide Petitioner an opportunity to accommodate his strict observance of the Sabbath. 

17. The sunset during the year varies from 5:01 p.m. in December, to 8:35 p.m. in June. 

18. The Respondent's change in its accommodation practice was stated to the Petitioner to be for 
the reason that Respondent did not have enough staff to give each nurse every other weekend off 
without paying overtime, which had to be kept to a minimum because of budget restrictions. (Re- 
spondent's Exhibit #3) 

19. At all times relevant hereto it was Respondent's common practice to allow nurses to work 
overtime on the weekend shifts. 

20. The nurses' work schedule was made with as many days and shifts covered as possible given 
the number of available nurses. Nurses signed up to work the uncovered shifts on their days off. 

21. On or about April 11, 1991, Respondent informed the Petitioner that Petitioner, on his own 
initiative, could trade schedules with any other R.N. or L.P.N, so long as it did not create additional 
overtime. 



*The North Carolina Office of State Personnel, Personnel Manual, Section 12, Page 37 
states: 

"An employer has the obligation to make reasonable accommodation to the 
religious needs of his employees, where such accommodations do not force 
undue hardship on the employer. The employer must prove that such religious 
accommodations cause undue hardship to his business." 



7:7 NORTH CAROLINA REGISTER July I, 1992 782 



CONTESTED CASE DECISIONS 



22. During the months of June and July, 1991, prior to Petitioner's dismissal, registered nurse 
(R.N.), Ms. Shelba Poole, offered to enter into a permanent arrangement with the Petitioner whereby 
Ms. Poole would work every Friday and Saturday, and the Petitioner would work every Sunday and 
Monday. (Respondent's Exhibit #11) 

23. Ms. Poole worked the same shift as the Petitioner, and this proposed arrangement would have 
provided the nurse coverage that the Respondent was seeking. 

24. Ms. Poole was employed as a lead nurse at Respondent O'Berry Center, with the same title 
and responsibilities as the Petitioner. 

25. Ms. Poole had 27 years of professional experience as a registered nurse, all with State insti- 
tutions in North Carolina. 

26. Ms. Poole was a nurse supervisor for 15 years prior to her employment at the O'Berry Center 

27. Ms. Poole has an unblemished record of service with the State of North Carolina. 

28. During the month of June, 1991, Ms. Poole learned of the conflict that the Petitioner was 
having with Respondent concerning his scheduled work and his religious observance of the Sabbath 

29. Once Ms. Poole established to her satisfaction that the Petitioner was a good nurse, she went 
to the Petitioner's supervisor. Ms. Willie Patterson, and offered to work for the Petitioner every 
Sabbath. (Respondent's Proposed Finding #46) 

30. Ms. Patterson rejected the proposal, as did her supervisor, Ms. Sula Ridings, for the stated 
reason that the Petitioner would not guarantee to cover for Ms. Poole when she took leave if it con 
flirted with Petitioner's Sabbath observance. (Respondent's Fxhibit #1 1) 

31. Ms. Poole averaged a week of vacation two times a year, and used her other vacation days a 
day or two at a time. 

32. Vacation leave was scheduled and planned in advance. 

3}. Overtime restrictions and payment were not stated to Petitioner on or about July 15, 1991, 
as reason to reject the arrangement between the Petitioner and Ms. Poole's proposed accommodation. 
(Respondent's Exhibit #11) 

34. After the Petitioner was terminated, Ms. Poole left the employ of Respondent (O'Berry 
Center) because she felt that the institution had not honored its agreement with the Petitioner. 

35. During the month of May. 1991, Ms. Terri Deaver, R.N., offered to rearrange schedules with 
the Petitioner on one occasion, to allow him to observe the Sabbath, which was an offer of an ac- 
commodation as stated to be available to Petitioner. (Respondent's Exhibit #3) 

36. Ms. Deaver stayed over for the Petitioner from 5:00 p.m. until sundown at 8:30 p.m. when 
the Petitioner arrived. 

37. After the exchange, the supervisor. Ms. Patterson, refused to compensate Ms. Deaver for the 
time worked because they had not consulted her prior to the exchange. 

38. As a result, the Petitioner paid Ms. Deaver $65.00 from his funds to compensate her for the 
time she had worked. 

39. After the incident, Ms. Deaver did not exchange time with the Petitioner again. 



7S3 7:7 NORTH CAROLINA REGISTER July 1, 1992 



CONTESTED CASE DECISIONS 



40. Both supervisors, Ms. Ridings and Ms. Patterson, did not view that it was their responsibility 
to seek other methods or other personnel scheduling to accommodate Petitioner in his Sabbath 
observance. 

41. Respondent recorded no other disciplinary actions against the Petitioner's work performance. 
Petitioner was considered a very competent nurse. 

42. The only disciplinary actions that were issued against the Petitioner were taken because he 
reported for work late due to his Sabbath observance, although Petitioner had informed his supervisor 
in advance that he would be reporting later for work on each of the evenings that he was scheduled to 
report before sundown. 

43. The following schedule illustrates the times that the Petitioner was scheduled to report to 
work, the time that the Petitioner reported to work, and the disciplinary action that followed: 

Reported Disciplinary 

Date Scheduled In Action 

May 25, 1991 5:00 p.m. 8:30 p.m. Counseling memo 

June 1,1991 5:00 p.m. 8:30 p.m. Written Warning 

June 8,1991 5:00 p.m. 8:30 p.m. Conference 

June 22, 1991 5:00 p.m. 8:30 p.m. Final Written Warning 

July 6,1991 5:00 p.m. 8:30 p.m. Dismissal 

44. These disciplinary actions (for the most part) were taken during the time that Ms. Poole of- 
fered to enter into a permanent arrangement with the Petitioner to allow the Petitioner to accommodate 
his Sabbath observance with de minimis or no overtime compensation. 

45. By letter of July 16, 1991, Petitioner was dismissed for alleged insubordination. (Respondent's 
Exhibit # 1 2) 

46. By letter of August 5. 1991, Petitioner was offered the remedy of voluntary resignation ac- 
companied bv the removal of all disciplinary actions from Petitioner's disciplinary file. (Respondent's 
Exhibit #13)' 

47. Subsequent to Petitioner's termination, Mr. Chowdhry discussed with Petitioner his continued 
employment with Respondent with strict Sabbath observance for an additional six months while 
Petitioner pursued other employment. No mention was made to Petitioner concerning overtime re- 
strictions. 

Based upon the foregoing Stipulations and Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1. Petitioner is a permanent State employee as defined in G.S. 126-39. 

2. The Office of Administrative Hearings has jurisdiction over the parties and subject matter 
pursuant to Chapters 126 and 150B of the North Carolina General Statutes and to issue a recom- 
mended decision to the State Personnel Commission which shall make the final decision. 

3. Petitioner's allegations of dismissal for causes related to his observance of religious beliefs give 
rise to a potential violation of the religious discrimination prohibitions in G.S. 126-36 and G.S. 
126-37(a). 

4. In order for Petitioner to establish a prima facie case of religious discrimination under G.S. 
126-36, the Petitioner must prove: 

(1) that Petitioner held a bona fide religious belief or engaged in a bona fide religious practice; 



7:7 NORTH CAROLINA REGISTER July I, 1992 784 



CONTESTED CASE DECISIONS 



(2) that the Respondent-employer had notice of the Petitioner's beliefs; and 

(3) that the Petitioner was discharged for refusing to comply with an employment requirement be- 
cause it was contrary to his beliefs. 

5. Petitioner held a bona fide religious belief or practice that working on his Sabbath violated a 
religious tenet of his church, as expressed in the doctrine of the Worldwide Church of God. 

6. Prior to his employment with Respondent, Respondent was aware of his belief. (Petitioner's 
Exhibit #18) 

7. Petitioner was discharged for insubordination because Petitioner failed to report to work during 
his Sabbath observance. 

8. Petitioner has carried his burden of proof that he has genuine belief that compliance with the 
requirement that he work on his Sabbath is contrary to his religious belief and practice which prohibits 
him from working on his Sabbath, that he told his employer about his belief prior to being employed, 
and that he was discharged for refusing to comply with that requirement. (Respondent's proposed 
Conclusion of Law #5) 

9. Once Petitioner establishes his prima facie case, the burden shifts to the Respondent to show 
that it could not reasonably accommodate the Petitioner's belief without undue hardship. 

10. Respondent was required to take affirmative steps to explore and implement alternatives that 
would accommodate Petitioner's religious practices. In fact. Respondent, for a period of almost one 
year, admirably performed this accommodation. 

1 1. The Respondent failed to take affirmative steps on behalf of the Petitioner because its super 
visors. Ms. Ridings and Ms. Patterson, did not feel that is was their duty to seek out other people to 
swap davs with the Petitioner, but that this responsibility rested solely with the Petitioner after April 
of 1991.' 

12. Respondent informed the Petitioner that Petitioner could trade schedules with another nurse 
so long as it did not create additional overtime. (Respondent s Pxhibit #3) These were the terms of- 
fered to Petitioner without further efforts of accommodation by Respondent. 

13. A reasonable accommodation was available to Respondent when Ms. Poole offered to enter 
into a permanent arrangement with the Petitioner whereby Ms. Poole would work every Friday and 
Saturday, and the Petitioner would work every Sunday and Monday. (Respondent's Exhibit =1 1) 

14. Ms. Poole worked the same shift as the Petitioner, and this proposed arrangement would have 
provided the nurse coverage that the Respondent was seeking. 

15. Ms. Poole was employed as a lead nurse at Respondent O'Berry Center, with the same title 
and responsibilities as the Petitioner. 

16. Ms. Poole has 27 years of professional experience as a registered nurse, all with State insti- 
tutions in North Carolina. 

17. Ms. Poole was a nurse supervisor for years prior to going to O'Berry Center. 

IS. Ms. Poole has an unblemished record of service with the State of North Carolina. 

19. Ms. Poole supported the need for accommodation, and offered to work for the Petitioner 
every Sabbath. 



785 7:7 NORTH CAROLINA REGISTER July 1, 1992 



CONTESTED CASE DECISIONS 



20. The proposed accommodation would not have generated any additional overtime at the Re- 
spondent agency. If it had generated overtime the cost to Respondent was de minimis. 

21. The proposed accommodation would have covered every weekend between the two of them, 
would not have violated any overtime restrictions or the policy of granting each nurse every other 
weekend off. (Respondent's Exhibit #11, Respondent's Exhibit #3) 

22. The Respondent never tried to effect the reasonable accommodation available to it. (Re- 
spondent's Exhibit #11) 

23. The Respondent did not go forward with its burden of production that undue hardship would 
result from accommodating the Petitioner with the arrangement proposed by Ms. Poole. Petitioner 
proved by the greater weight of the evidence that this accommodation was not an undue hardship for 
Respondent. 

24. The only defense offered as to an undue hardship did not relate to the cost of this arrangement 
but that Petitioner himself would not later violate his religious belief by working on the Sabbath IF 
AND WHEN Ms. Poole took leave (planned or otherwise) at some future and indefinite point when 
this future leave happened to fall on a Saturday. This arrangement was not a hardship (undue or 
otherwise) for the Respondent as all employees who take leave must be covered. The accommodation 
scheme was not burdensome; not a hardship and certainly not an undue hardship. 

25. A second reasonable accommodation was available to Respondent when Ms. Deaver, R.N., 
offered to rearrange schedules with the Petitioner on one occasion, to allow him to observe the Sabbath. 

26. .After the exchange, the supervisor, Ms. Patterson, refused to compensate Ms. Deaver for the 
time worked because they had not consulted with her about the exchange. 

27. As a result, the Petitioner paid Ms. Deaver $65.00 to compensate her for the time she had 
worked. 

28. The failure of the Respondent to allow this accommodation had a chilling effect on any further 
accommodation attempts by Ms. Deaver. 

29. This second accommodation with Ms. Deaver was also without undue hardship to Re- 
spondent. Any inconvenience was within the scope of Respondent's affirmative duty to accommodate 
Petitioner's religious beliefs. 

30. Petitioner has, in all respects, carried his burden of proof of religious discrimination under 
G.S. 126-36 and is entitled to all relief that flows therefrom. 

Based upon the foregoing Stipulations, Findings of Fact and Conclusions of Law, the undersigned 
makes the following: 

RECOMMENDED DECISION 

That the Respondent's decision to dismiss the Petitioner, Daniel W. Sherrod, on July 31, 1991, for 
insubordination be reversed on the basis of religious discrimination. It is recommended that the 
Petitioner be reinstated to the position he held prior to his termination; that he receive back pay from 
the date of his dismissal to the date of his reinstatement; that he receive reasonable attorney's fees and 
costs; and that he receive all benefits to which he would have been entitled but for his involuntary 
separation on July 31, 1991. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Adminis- 
trative Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina 
General Statute 15UB-36(b). 



7:7 NORTH CAROLINA REGISTER July I, 1992 7S6 



CONTESTED CASE DECISIONS 



NOTICE 

The agency making the final decision in this contested case is required to give each party an op 
portunity to file exceptions to this recommended decision and to present written arguments to those in 
the agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and 
to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina State 
Personnel Commission. 

Thus the 9th day of June. 1992. 



Julian Mann, III 

Chief Administrative Law Judge 



787 7:7 NORTH CAROLINA REGISTER July 1, 1992 



NORTH CAROLINA ADMINISTRA TIVE CODE CLASSIFICA TION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of 
these, titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each 
major department in the North Carolina executive branch of government has been assigned a title 
number. Titles are further broken down into chapters which shall be numerical in order. The other 
two, subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLENA ADMINISTRATIVE CODE 



riTLE 


DEPARTMENT 


LICENSING BOARDS 


CHAPTER 


1 


Administration 


Architecture 


2 


2 


Agriculture 


Auctioneers 


4 


3 


Auditor 


Barber Examiners 


6 


4 


Economic and Community 


Certified Public Accountant Examiners 


8 




Development 


Chiropractic Examiners 


10 


5 


Correction 


Genera] Contractors 


12 


6 


Council of State 


Cosmetic Art Examiners 


14 


7 


Cultural Resources 


Dental Examiners 


16 


8 


Elections 


Dietetics Nutrition 


17 


9 


Governor 


Electrical Contractors 


18 


10 


Human Resources 


Electrolysis 


1') 


11 


Insurance 


Foresters 


20 


12 


Justice 


Geologists 


21 


13 


Labor 


Hearing Aid E>ealers and Fitters 


22 


14A 


Crime Control and Public Safety 


Landscape Architects 


26 


15A 


Environment, Health, and Natural 


Landscape Contractors 


28 




Resources 


Martial & Family Therapy 


31 


16 


Public Education 


Medical Fxaminers 


32 


17 


Revenue 


Midwifery Joint Committee 


33 


18 


Secretary of State 


Mortuary Science 


34 


19A 


Transportation 


Nursing 


36 


20 


Treasurer 


Nursing Home Administrators 


37 


+21 


Occupational Licensing Boards 


Occupational Therapists 


38 


22 


Administrative Procedures 


Opticians 


40 


23 


Community Colleges 


Optometry 


42 


24 


Independent Agencies 


Osteopathic Examination and 


44 


25 


State Personnel 


Registration (Repealed) 




26 


Administrative Hearings 


Pharmacy 


46 






Physical Therapy Fxaminers 


48 






Plumbing, Heating and Fire Sprinkler 


50 






Contractors 








Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers and Land Surve) 


ors 56 






Real Estate Commission 


58 






Refrigeration Fxaminers 


60 






Sanitarian Fxaminers 


62 






Social Work 


63 






Speech and Language Pathologists and 


64 






Audiologists 








Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



7:7 NORTH CAROLINA REGISTER July I, 1992 



788 



CUMULA TIVE INDEX 



CUMULA THE INDEX 

(April 1992 - March 1993) 



1992 



1993 



Pages 



Issue 



1 - 105 1 - April 

106 - 173 2 - April 

174 - 331 3 - May 

332 - 400 4 - May 

401 - 490 5 - June 

491 - 625 6 - June 

626 - 790 7 - July 



AO - Administrative Order 

AG - Attorney General's Opinions 

C - Correction 

FR - Final Rule 

GS - General Statute 

JO - Judicial Orders or Decision 

M - Miscellaneous 

NP - Notice of Petitions 

PR - Proposed Rule 

TR - Temporary Rule 



ADMINISTRATION 

Auxiliary Services, 4 PR 

AGRICULTURE 

Gasoline and Oil Inspection Board, 336 PR 
Structural Pest Control Committee, 332 PR 
Veterinary Division, 342 PR 

ECONOMIC AND COMMUNITY DEVELOPMENT 

Banking Commission, 629 PR 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management. 211 PR, 655 PR 

Environmental Health. 223 PR 

Environmental Management. 190 PR, 416 PR, 500 PR, 644 PR 

Governor's Waste Management Board. 564 PR 

Health: Epidemiology, 140 PR 

Health Senices, 52 PR. 659 PR 

Marine Fisheries. 530 PR 

NPDES Permits Notices. 1, 107 

Radiation Protection, 136 PR 

Vital Records, 565 PR 

Wildlife Resources Commission, 28 PR, 133 PR, 408 C. 449 PR, 551 PR 

Wildlife Resources Commission Proclamation. 176 



S9 



7:7 NORTH CAROLINA REGISTER July 1, 1992 



CUMULA TIVE INDEX 



FINAL DECISION LETTERS 

Voting Rights Act, 106, 174, 406, 493, 628 

GOVERNOR/LI. GOVERNOR 

Executive Orders, 401, 491, 626 

HUMAN RESOURCES 

Agine, Division of, 121 PR, 346 PR 

Day Care Rules, 123 PR 

Economic Opportunity, 5 PR 

Facility Services, 111 PR, 177 PR, 496 PR, 634 PR 

Medical Assistance, 4 PR, 415 PR, 496 PR 

Mental Health, Developmental Disabilities and Substance Abuse Services, 111 PR, 297 FR, 409 PR 

Social Services Commission, 183 PR 

LNDEPENDENT AGENCIES 

Housing Finance Agency, 450 PR, 576 PR 

ENSURANCE 

Consumer Services Division, 125 PR 

Departmental Rules, 7 PR 

Engineering and Building Codes, 19 PR, 643 PR 

Fire and Rescue Services Division, 17 PR 

Hearings Division, 124 PR 

Life and Health Division, 22 PR, 347 PR 

Property and Casualty Division, 20 PR 

Seniors' Health Insurance Information Program, 132 PR 

JUSTICE 

Alarm Systems I icensing Board, 27 PR, 189 PR, 643 PR 

General Statutes Commission, 353 PR 

State Bureau of Investigation, 188 PR, 499 PR 

LICENSING BOARDS 

Certified Public Accountant Examiners, Board of, 355 PR 

Cosmetic Art Examiners. 360 PR 

Electrolysis Examiners, Board of, 69 PR, 700 PR 

Nursing, Board of, 232 PR. 700 PR 

Professional Engineers and Land Surveyors, 566 PR 

Speech and Language and Pathologists and Audiologists, 705 PR 

LIST OF RULES CODIFIED 

List of Rules Codified, 72, 362, 452, 584 

REVENUE 

License and Excise Tax. 712 ER 
Motor Fuels Tax Division, 361 FR 

STATE PERSONNEL 

Office of State Personnel. 237 PR, 705 PR 

TAX REVIEW BOARD 

Orders of Tax Review Board, 494 

TRANSPORTATION 

Highways, Division of, 228 PR 

Motor Vehicles, Division of, 6S PR, 142 PR 



7:7 NORTH CAROLINA REGISTER July I, 1992 790 



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